1. CLINIC Convening Colorado Springs, CO May 21, 2009
Consular Processing
CLINIC Convening
Colorado Springs, CO
May 21, 2009

2. Speakers Kristina Karpinski, CLINIC Peggy Gleason, CLINIC
Guest Speaker: NVC Director, Lynne P. Skeirik

3. AGENDA
Review of process, documentation issues, DNA testing, preparing clients for consular interviews
common denials, waivers, filing process, permission to reapply, appeals, how to communicate with consulates, CSPA issues at consulates
affidavit of support, derivatives following to join, and consular return of petitions to CIS, revocation

4. Resources 22 CFR 40-42 9 Dept of State, Foreign Affairs Manual
Consular web sites and visa bulletins
AILA Visa Processing Guide

5. National Visa Center Centralizes/administers initial processing
32 Rochester Ave.
Portsmouth, NH
(603)
Director Lynne Skeirik, Guest Speaker
Took over initial document review and interview scheduling
Contact at

6. Consular Processing Two ways to become a lawful permanent resident:
Adjustment of Status in US
Consular Processing
Must be admissible under INA 212 (a)
Most commons bars to eligibility
Unlawful presence and permanent bar for unlawful presence and return
Affidavit of support problems
Prior removal
Crimes
Fraud

7. Documentation Problems
Use original primary documents
Check Foreign Affairs Manual for availability of documents

8. If primary documents unavailable:
Secondary evidence
Church records – under seal of church where ceremony took place, shows names of parents and child
School records – letter from school authorities, dates of admission, child’s date and place of birth, names of parents
Census records – name, place and date of birth

9. If Secondary Evidence Unavailable:
Affidavits – written statements sworn and affirmed by at least 2 people
Must have been living at the time of event and have personal knowledge of it
State relationship to petitioner
Describe details of event
FAM – check listing of availability of docs.

10. DNA Testing
Used only where consular officer sees insufficient proof of bona fide relationship
Primary and secondary evidence do not provide sufficient evidence of claimed relationship
“entirely voluntary”
Expensive – $800 per person
Also bone density testing for age
Very common in certain countries: ex. Haiti, Ethiopia, Nigeria, all of West Africa

11. DNA Test Process DOS gives beneficiary list of accredited laboratories
Beneficiary has DNA sample taken overseas
Petitioner has DNA sample taken in US
Laboratory communicates results directly with Consulate

12. Contesting DNA Request
Only supposed to ask for DNA test where consular officer doubts credibility of primary and secondary evidence
Ask consulate for written explanation of why documents are not sufficient
Make consular officers go through required steps

13. Consular Interview Applicant appears for interview
Submits medical exam results and original documents if not already filed at NVC
Interview by consular official
Signs DS-230 Part 2
Application is approved or refused

14. Preparing Clients for Interviews
Counsel family about separation, typical processing times – sign statement of understanding
Oblige client to supply accurate address, phone, and fax contact while abroad, and same from petitioner in U.S.
Rehearse with client – prepare them for hostile questions and screening on grounds of inadmissibility

15. Interviews at Consulate
Punctual, have well organized documents
Eye contact with interviewer
Don’t volunteer more info than asked
Dress and behave with respect for interviewer
Note name of interviewer
Call/ counsel when leave consulate

16. Next Step If refused, obtain additional documents or file waivers
One year to file evidence
Seek review by senior consular officer
If approved, six months to enter at port of entry
If approved at border, applicant enters as LPR

17. How to Challenge Denial
Negotiate with Consul – supply further documents on issue
If legal error – request advisory opinion, Ofc of Public Liaison, DOS
Rm L703, DOS, 2401 E St. NW, Washington, DC fax , ph

18. File a Waiver
I-601 or I-212
File at CIS office overseas/often in Consulate
INVESTIGATE PROCESS AT PARTICULAR CONSULATE – any special form? Separate waiver filing appointment? CIS on site?
Requires USC or LPR spouse or parent
Extreme hardship to the qualifying relative
Supporting documents key
Detailed affidavits, property, community ties, proof of relationships, medical issues, schools, etc.

19. I-601 for Crimes Some crimes are waivable under 212(h)
Not drugs except 30 g or less marijuana, not murder
Extreme hardship to USC or LPR spouse, parent or child (or 15+ years ago)
Show rehabilitation and remorse as well as qualifying relationship and hardship
Provide certified copies of court dispositions

20. I-212 permission to reapply
For prior removals – and for permanent bar cases ten years after departure
Balance Positive v. negative equities – general humanitarian factors, relatives, and hardship relevant, as are community ties. Negative factors are police or immigration history of violations, bad acts.
Sometimes possible to file in US prior to departure

21. Waivers and I-212 Appeals
File Notice of Appeal within 33 days on form I-290B, with fee of $585
File at office/consulate that made the decision
Record of proceeding prepared and forwarded to AAO, 20 Massachusetts Av. NW, Rm A3042, Washington, DC file brief, new evidence with AAO
Call/ counsel when leave consulate

22. Meeting One-Year Requirement
Must appear for interview within one year of scheduled interview
Submit documents requested at interview w/in one year
After one year consulate sends warning
Request reinstatement due to circumstances beyond control (illness, inability to secure documents)
Case closed, I-130 revoked after two years

23. Communication with Consulates
View consular web site at for names of individuals in Imm. Visa section
that officer about difficult case in advance
Cc in problem cases
Some consulates very unresponsive, be insistent, go to supervisory level

24. CSPA cases at Consulates
How to approach IV section about scheduling a child who is covered under CSPA
Format of cover letter
Do CSPA formula in letter with the dates inserted, show coverage
Go to supervisor if fail to heed
Some consulates difficult to convince

25. WHEN IS I-864 REQUIRED?
Affidavit required in almost all family based cases and employment cases where a relative files the worker petition (or owns 5% of business filing petition).
Affidavit not required - file I-864W
Immigrant can be credited with 40 quarters of work (see DOS Cable of February 22, 2002)
Widow/er of USC
Child seeking residence who will become a citizen upon arrival in the US under the Child Citizenship Act of 2000

26. ISSUES FOR INDIVIDUAL CONSULATES
Some consulates insist on a new affidavit and supporting documents if affidavit is more than 6 months old./ Some disregard real estate in home country as asset
Many consulates will ask for IRS generated tax transcripts though they can accept IRS 1040s too
Some insist on updated employment information for sponsor or joint sponsor if close to income cutoff

27. OVERSEAS DERIVATIVES
Only for spouse or children of persons in the preference categories (family or employment).
After principal has adjusted (or at time of filing adjustment) File I-824 with USCIS.
Once I-824 approved – sent to NVC to begin consular processing for derivatives
Some consulates will begin processing upon request of derivative and proof of principal’s status/family relationship.

28. Consular Return of Petitions to CIS
See rules at 9 FAM N1(b)
Consulate should review, not readjudicate
Can return petition if fraud or clear error appears due to information obtained at consulate
Returns to NVC
If CIS reaffirms, Consulate should approve

29. Problems
Mrs. D is denied an immigrant visa for unlawful presence and a prior deportation. She is consular processing in Honduras. She has a US citizen husband. What does she need to file? How does she file it?
What can she do if denied the waiver? How?

30. Problems
Mr. X has an immigrant visa interview in Mexico. He has a 3 DUI charges over the last few years. What will happen at interview?

31. Problems
Mrs. B has a consular interview in Honduras. She is denied for unlawful presence, and presents her waiver the same day. The consulate takes her fee, and tells her they will be in touch. She walks away with a form that says Questions on Hardship. What should she do?

32. Problems
Your client has a child following to join his LPR mother in the U.S. She is interviewing for adjustment this week in Baltimore. What should you file at the time of her interview to assure that the child gets an interview at the consulate as soon as possible?

33. Problems
You have a client whose child (age 20) tries to consular process in Trinidad. The medical reveals marijuana use, and the consulate finds him inadmissible as a drug abuser. What can you do?

34. Problems
You have two children of your naturalized US citizen client who you argue are covered by the Child Status Protection Act. You want to process them through the American Consulate in Manila. How do you approach the consulate? What do you do if the consulate ignores you?