UNCLASSIFIED (U)

9 FAM 504.2

(U) Immigrant Visa Petitions

(CT:VISA-1151;   09-14-2020)
(Office of Origin:  CA/VO)

9 fam 504.2-1  (U) Statutory and Regulatory Authorities

9 FAM 504.2-1(A)  (U) Immigration and Nationality Act

(CT:VISA-1;   11-18-2015)

(U) INA 101(a)(27)(A) (8 U.S.C. 1101(a)(27)(A)); INA 101(a)(27)(B) (8 U.S.C. 1101(a)(27)(B)); INA 101(a)(27)(D) (8 U.S.C. 1101(a)(27)(D)); INA 201(b)(2)(A)(i) (8 U.S.C. 1151(b)(2)(A)(i)); INA 203(a) (8 U.S.C. 1153(a)); INA 203(b) (8 U.S.C. 1153(b)); INA 203(c) (8 U.S.C. 1153(c)); INA 203(d) (8 U.S.C. 1153(d)); INA 203(f) (8 U.S.C. 1153(f)); INA 203(g) (8 U.S.C. 1153(g)).

9 FAM 504.2-1(B)  (U) Code of Federal Regulations

(CT:VISA-1;   11-18-2015)

(U) 8 CFR 103.7; 8 CFR 205; 22 CFR 42.41; 22 CFR 42.42; 22 CFR 42.43.

9 FAM 504.2-1(C)  (U) Public Law

(CT:VISA-1;   11-18-2015)

(U) Marriage Fraud Amendments Act of 1986, Public Law 99-639, sec. 5; The Adam Walsh Child Protection and Safety Act (Adam Walsh Act), Public Law 109-248, sec. 402;  Immigration Act of 1990, Public Law 101-649, sec. 702; Public Law 100-202, sec. 584; Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1990, Public Law 101-167, title II; Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1991, Public Law 101-513, title II; Immigration Act of 1990 (Public Law 101-649); Public Law 102-232, sec. 302.

9 FAM 504.2-2  (U) IV Petition Overview

9 FAM 504.2-2(A)  (U) Notice of Petition Approval

(CT:VISA-1151;   09-14-2020)

a. (U) Except for petitions accepted and approved at a post overseas (see 9 FAM 504.2-4 below on Petitions Filed at Consular Offices Abroad), a consular officer must not issue an immigrant visa (IV) without receipt from the Department of Homeland Security (DHS) of an approved immigrant visa petition or electronic petition data:

(1)  (U) Form I-130, Petition for Alien Relative;

(2)  (U) Form I-600, Petition to Classify Orphan as an Immediate Relative;

(3)  (U) Form I-800, Petition to Classify Convention Adoptee as an Immediate Relative;

(4)  (U) Form I-140, Immigrant Petition for Alien Worker;

(5)  (U) Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant; or

(6)  (U) Form I-526, Petition for Alien Entrepreneur.

b. (U) In emergency situations only, consular officers may issue a visa based on the following:

(1)  (U) Cable notification of such approval;

(2)  (U) Official notification Form I-797, Notice of Action, of such approval;

(3)  (U) An electronic case record provided by the National Visa Center (NVC); or

(4)  (U) Faxed notice of approval of Form I-600 received directly from the approving DHS office.

9 FAM 504.2-2(B)  (U) Establishing Relationship Between Petitioner and Alien Beneficiary

(CT:VISA-1087;   06-22-2020)

(U) An approved petition under INA 204 is considered to establish prima facie that the requirements for the visa classification, which were examined by USCIS during the petition process, have been met.  However, the approval of a petition by USCIS does not relieve the alien of the burden of establishing visa eligibility.  You should confirm that the facts claimed in the petition are true during the visa interview.  Remember that USCIS interacts solely with the petitioner; the interview is the first point during the petition-based visa process where a USG representative has the opportunity to interact with the beneficiary of the petition.  Additionally, you benefit from cultural and local knowledge that adjudicators at USCIS do not possess, making it easier to spot misrepresentation in qualifications.  While validity of the relationship between the petitioner and the alien beneficiary, familial or employer and/or employee, is presumed to exist, if you have specific, substantial evidence of misrepresentation in the petition process or discover facts unknown to DHS at the time of approval, you may consider returning the petition to DHS.  (See 9 FAM 504.2-1 and 22 CFR 42.43.)  Unless a petition has been automatically revoked under INA 203(g), a properly approved petition remains valid indefinitely provided the familial or employer and/or employee relationship exists.

9 FAM 504.2-2(C)  (U) Importance of Filing Petitions For Preference Status

(CT:VISA-1;   11-18-2015)

(U) Immigrant visa applicants compete on a first-come, first-served basis for the visa numbers available.  Since the filing date of an approved petition may establish the priority of certain preference applicants, you should encourage the filing of a petition on behalf of any alien eligible for preference status, and should not discourage the filing of a petition because the preference category or foreign state limitation is oversubscribed.

9 FAM 504.2-2(D)  (U) Filing IV Petitions

9 FAM 504.2-2(D)(1)  (U) Proper Filing

(CT:VISA-353;   04-26-2017)

(U) A properly filed petition must be:

(1)  (U) Signed by the petitioner; and

(2)  (U) Accompanied by the appropriate DHS fee.  (See 8 CFR 103.7.)

9 FAM 504.2-2(D)(2)  (U) Petition Forms

(CT:VISA-918;   08-12-2019)

a. (U) Form I-130, Petition for Alien Relative, is used to classify the following as immediate relatives INA 203(c)(8 U.S.C. 1153(c)) or INA 101(a)(27)(D) (8 U.S.C. 1101(a)(27)(D)). 

(1)  (U) Spouse of a U.S. citizen;

(2)  (U) Child of a U.S. citizen;

(3)  (U) Parent of an adult (over age 21) U.S. citizen;

(4)  (U) Unmarried son or daughter of a U.S. citizen;

(5)  (U) Spouse, child, son, or daughter of a permanent resident alien;

(6)  (U) Married son or daughter of a U.S. citizen; and

(7)  (U) Brother or sister of an adult (over age 21) U.S. citizen.

b. (U) Form I-600, Petition to Classify Orphan as an Immediate Relative, is used to classify the following as an immediate relative under INA 201(b):

(1)  (U) Child to be adopted in the United States by a U.S. citizen; and

(2)  (U) Orphan adopted overseas by a U.S. citizen.

c.  (U) Form I-800, Petition to Classify Convention Adoptee as an Immediate Relative, is used to classify a Child in Hague Convention Country to be adopted in the United States by a U.S. citizen as an immediate relative under INA 201(b). (See 9 FAM 502.3-4(D)(1).)

d. (U) Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, is used to classify the following as an immediate relative under Public Law 97-359 or under INA 201(b), or as a special immigrant under INA 203(b)(4) (8 U.S.C. 1153(b)(4)):

(1)  (U) Amerasian child, son, or daughter of a U.S. citizen eligible under Public Law 97-359 (see 9 FAM 502.2-4(C));

(2)  (U) Widow(er) of a U.S. citizen;

(3)  (U) Special immigrant under INA 203(b)(4); and

(4)  (U) Spouse or child of abusive citizen or legal permanent resident (see 9 FAM 502.1-2(C)).

e. (U) Form I-140, Immigrant Petition for Alien Worker, is used to classify an alien as a preference immigrant under INA 203(b)(1), (2) or (3) (see 9 FAM 502.4-4):

(1)  (U) Priority workers;

(2)  (U) Professional holding advanced degree or person of exceptional ability; and

(3)  (U) Skilled worker; professional or other worker.

f.  (U) Form DS-1884, Petition to Classify Special Immigrant Under INA 203(b)(4) as an Employee or Former Employee of the U.S. Government Abroad, is used to classify an alien for status as a special immigrant as described in INA 101(a)(27)(D).  (See 9 FAM 502.5-3).

g. (U) Form I-526, Immigrant Petition by Alien Entrepreneur, is used to classify an alien as a preference immigrant under INA 203(b)(5).  (See 9 FAM 502.4-5).

h. (U) No petition is required for the following aliens:

(1)  (U) Returning residents classified under INA 101(a)(27)(A) (see 9 FAM 502.7-2);

(2)  (U) Certain former U.S. citizens classified under INA 101(a)(27)(B) (see also 9 FAM 502.7-2(B), paragraph c); and

(3)  (U) Amerasians eligible under section 584(b)(1)(A) of Public Law 100-202 as amended by Public Law 101-167 and Public Law 101-513.  (See 9 FAM 502.2-4(C).)

9 FAM 504.2-2(D)(3)  (U) Supporting Documents and Fees

(CT:VISA-1004;   01-31-2020)

a. (U) The supporting documents and fees required by DHS in connection with the filing of a petition are given under the instructions portion of each petition.  See 8 CFR 103.7 for a listing of DHS fees and see www.uscis.gov for additional information on supporting documents and fees.  Also see 9 FAM 502.3-3(C)(2) for discussion of documents required for Form I-600, Petition to Classify Orphan as an Immediate Relative.  Also see 9 FAM 502.3-4(D)(4) for a discussion of documents required for Form I-800 Petition to Classify Convention Adoptee as an Immediate Relative.

b. (U) Photocopies of Supporting Documents:

(1)  (U) DHS regulations require legible, true copies of original documents, including copies of naturalization certificates and Permanent Resident Cards which are acceptable if filing petitions with DHS adjudicators.  A copy of a certified copy from a state bureau of vital statistics which is certified by a notary public is NOT acceptable unless accompanied by the copy containing the state seal.

(2)  (U) DHS has determined, however, that the authority delegated to consular officers to approve petitions will include only those cases in which the originals of the required supporting documents are submitted.  All documentation submitted in support of visa petitions approved by consular officers must be original, except the Form I-864.  (See 9 FAM 302.8-2(C)(9).)  If the petitioner submits copies of required supporting documents and is unwilling to submit the originals, the consular officer must consider the petition not clearly approvable and forward the petition to DHS through NVC.

9 FAM 504.2-2(E)  (U) Role of the National Visa Center (NVC)

(CT:VISA-1124;   07-22-2020)

a. (U) The National Visa Center (NVC) receives all IV petitions (both in paper and electronic form) that were:

(1)  (U) Approved by USCIS, and where

(2)  (U) The principal applicant will apply overseas at a U.S. Embassy or other diplomatic post.

b. (U) NVC takes the following steps upon receiving a petition (see 9 FAM 504.4-2(A)):

(1)  Unavailable

(2)  (U) If the approved petition is other than for an immediate relative or for a family preference category that has a priority date and falls within the dates for filing visa applications set by CA/VO/DO/I, NVC sends a "Welcome Letter" to the applicant and petitioner (or to the Attorney of Record if USCIS forwarded a Form G-28 to NVC).  NVC sends this communication to all the case parties via email and a physical letter.  The "Welcome Letter" provides the applicant and petitioner (or attorney) with their NVC Case and Invoice ID numbers and instructs them to go to https://nvc.state.gov and complete the following six steps:

(a)  (U) Step 1:  (For IVIS cases only) Choose an agent (online Form DS-261);

(b)  (U) Step 2:  Pay fees;

(c)  (U) Step 3:  Submit visa application form (online Form DS-260);

(d)  (U) Step 4:  Collect financial documents;

(e)  (U) Step 5:  Collect supporting documents;

(f)   (U) Step 6:  Submit documents to the NVC (via mail or email depending on the processing location).

(3)  (U) If the approved petition is for an immediate relative or for a family preference category that has a priority date and falls within the dates for filing visa applications set by CA/VO/DO/I, NVC sends a "Case Creation Notice" to the applicant and petitioner (or to the Attorney of Record if USCIS forwarded a Form G-28 to NVC). The "Case Creation Notice" provides the applicant and petitioner (or attorney) with their NVC Case and Invoice ID numbers and instructs them to go to CEAC IV and complete the following four steps:

(a)  (U) Step 1: Pay fees;

(b)  (U) Step 2:  Submit visa application form (online Form DS-260);

(c)  (U) Step 3:  Collect supporting documents and financial documents; and

(d)  (U) Step 4:  Upload a digital image of all these documents to their CEAC account.

(4)  (U) For IVIS cases, if the approved petition is for an oversubscribed category with noncurrent priority dates, NVC will send the applicants a notice of their noncurrent status.  This notice informs parties to a case (petitioner, beneficiary, and attorney of record, if any) that NVC received the petition from USCIS and that the petition will be eligible for further processing when the priority date is earlier than the cut-off date for the case's visa category.  The letter provides the petitioner with the following information:   

(a)  (U) NVC Case Number

(b)  (U) Country of Chargeability

(c)  (U) Priority Date.

(5)  (U) If an email address is available, NVC sends all communications via email instead of mailing a physical letter.  This is true for all IVIS informational packets and checklist letters during document collection.  The letter confirms receipt of the petition at NVC and explains further processing steps, as appropriate.

(6)  (U) For PIVOT cases, if the approved petition is for an oversubscribed category with noncurrent priority dates, NVC will send the "Case Creation Notice" to the applicant and petitioner (or to the Attorney of Record if USCIS forwarded a Form G-28 to NVC). The "Case Creation Notice" provides the applicant and petitioner (or attorney) with their NVC Case and Invoice ID numbers and instructs them to go to CEAC IV to obtain their current status. A message will display indicating that their petition is not eligible for further processing at this time.

c.  Unavailable

(1)  Unavailable

(a) Unavailable 

(b)  Unavailable

(c)  Unavailable

(d)  Unavailable

d. Unavailable

(1)  Unavailable

(2)  Unavailable

(3)  Unavailable

9 FAM 504.2-3  (U) Filing IV Petitions with USCIS

9 FAM 504.2-3(A)  (U) Petitions Executed in the United States

(CT:VISA-1124;   07-22-2020)

a. (U) All immigrant petitions are executed in single copy.  A separate petition and fee are required for each beneficiary.  Petitioners should consult with the USCIS website for filing instructions including where to file a petition and the fee(s).  Separate petitions are not required for spouses and children entitled to derivative preference status under INA 203(d) (8 U.S.C. 1153(d)).  For all petitions received at USCIS offices in the United States, the petitions bear a USCIS receipt number.  USCIS maintains records of the approval of each petition.  Upon approval, USCIS will forward the physical petition to the NVC, except for petitions processed electronically in ELIS.  USCIS is currently accepting electronic I-130 filing and will expand to include additional forms for which NVC will not receive paper files or images representing the paper files.   There will be a mix of physical petitions and electronic petition data sent to NVC for the foreseeable future. 

b. (U) Petition Form I-600, Petition to Classify Orphan as an Immediate Relative: The fee paid by the prospective adopting parents for the Form I-600A, Application for Advance Processing of Orphan Petition, covers the petition for the first child and petitions for any siblings.  A separate fee is required for petitions filed for unrelated children up to the number authorized by the Form I-600A approval.  Petitioners should consult with the USCIS website for filing instructions including where to file a petition.

c.  (U) Petition Form I-800, Petition to Classify Convention Adoptee as an Immediate Relative:  The fee paid by the prospective adopting parents for the Form I-800-A, Application for Determination of Suitability to Adopt a Child from a Convention Country, covers the application for the first child and applications for any siblings.  A separate fee is required for petitions filed for unrelated children up to the number authorized by the Form I-800-A approval.  Form I-800-A Supplement 1 must also be provided for each adult member of the household, excluding the applicant and applicant’s spouse.  Petitioner must always file Form I-800 and Form I-800A with the USCIS National Benefits Center.

9 FAM 504.2-3(B)  (U) Disposition of Petitions Filed With Department Of Homeland Security (DHS)

(CT:VISA-1124;   07-22-2020)

a. (U) DHS will endeavor to send physical approved petitions to the NVC on a daily basis via first-class mail or express delivery.  If, due to unanticipated difficulty, the DHS Service Center is unable to ship petitions within 72 hours after approval, DHS will so notify the NVC.  DHS will include a computer-generated manifest, arranged in ascending numerical order of DHS receipt numbers, in each box of petitions shipped.  White bar-code labels will be placed on the right-hand corner of the petitions.  No staples will be affixed through the labels.  Data from petitions that are filed and approved electronically will be ingested directly into PIVOT from USCIS systems.  There will not be an accompanying physical petition or image of the petition transferred in these cases since it is no longer marked or altered by USCIS adjudicators.  Where required or requested, DHS will communicate directly to the post or DHS office abroad, information on immigrant petitions for orphans and approval of Forms I-600, Petition to Classify Orphan as an Immediate Relative, advance processing applications for orphans.  When the petition indicates that the beneficiary intends to adjust status, but no immigrant visa number is immediately available, DHS will retain the petition until such time as a number becomes available.

b. (U) Acknowledging Receipt of Noncurrent Petition for Physical (IVIS) Cases:

(1)  (U) When the NVC receives an approved physical petition other than Forms I-130 in a category for which IV numbers are unavailable, the NVC must send the Notice of Registration as Intending Immigrant (formerly Packet 3a), to the applicant confirming receipt of the petition and explaining further processing steps, as appropriate.

(2)  (U) Under the centralized IV process, posts will not receive petitions from the NVC that do not have a visa available.

(3)  (U) In the case of any applicant in an oversubscribed category, the NVC must check the petition to determine whether the applicant may benefit from the foreign-state chargeability of the spouse under INA 202(b).  NVC checks the petition to see if there is an option of using the derivative spouse's FSC, but the case will remain noncurrent in the absence of information on the spouse's place of birth, unless the petitioner contacts NVC to inform the NVC of the beneficiary's derivative spouse's FSC.

c.  (U) Acknowledging Receipt for Noncurrent Petition for Electronic IV (PIVOT) Cases: When NVC receives an approved I-130 petition or petition data, for which IV numbers are unavailable, the NVC must send the PIVOT Case Creation Notice to all parties on the case confirming receipt of the petition and instructing them to log into their CEAC account to obtain further processing steps, as appropriate.

9 FAM 504.2-3(C)  (U) Petitions Where Department of Homeland Security (DHS) Memorandum is Attached

(CT:VISA-1151;   09-14-2020)

a. (U) In rare instances, the consular officer may receive a petition from DHS accompanied by a memorandum containing information which may relate to the alien's entitlement to status or visa eligibility.  In those instances, where the information relates to a minor question of fact which the consular officer is able to resolve in the alien's favor, endorse the memorandum with a brief statement indicating why the visa was issued.  Place the memorandum and petition in an envelope and attach it to the sealed envelope for the visa.

b. (U) If the alien is clearly not entitled to status, return the petition to the DHS adjudicating office in accordance with the instructions in 9 FAM 504.2-8(B)(1) below.

c.  (U) If the information contained in the DHS memorandum raises questions regarding the alien's eligibility or contains classified information, or if a statement regarding the countervailing evidence would require a security or administrative classification, you must submit the case to L/CA for an advisory opinion (AO).  The AO must provide:

(1)  (U) A copy of the information furnished by DHS;

(2)  (U) The evidence developed by the consular officer; and

(3)  (U) The consular officer's recommendation regarding the alien's entitlement to status or eligibility.

9 FAM 504.2-3(D)  (U) Inquiring About the Status of Petitions

(CT:VISA-1004;   01-31-2020)

(U) Posts normally should not communicate with the Department or directly with DHS inquiring about the status of petitions.  As an alternative, the consular officer should advise an alien seeking such assistance to ask the petitioner to obtain the information on the pending visa petition directly from DHS.  Petitioners should direct such information inquiries to the DHS Service Center with which the petition was filed.  Posts may submit to the Department cases which have public relations significance, however, stating the reasons for such action in the post's telegram.

9 FAM 504.2-4  (U) Petitions Filed at Consular Offices Abroad

(CT:VISA-1004;   01-31-2020)

a. (U) In General: Consular officers at posts abroad are authorized to adjudicate certain "clearly approvable" petitions. If a consular officer approves such a petition at a post that does not issue immigrant visas, the consular section must forward the petition to the immigrant visa processing post with jurisdiction over the country.

b. (U) The Department of State may only approve petitions that are clearly approvable.  You must send the petition and supporting documents, along with a memorandum explaining why the petition is not clearly approvable, to the National Visa Center if the case is not "clearly approvable" for the following reasons:

(1)  (U) Primary evidence submitted does not satisfy you that the petitioner is a U.S. citizen or that the relationship to the beneficiary claimed in the petition exists; or

(2)  (U) Petitioner cannot present primary evidence relating to such matters; or

(3)  (U) USCIS has so instructed post because the Adam Walsh Act check raises questions which need further review.

(4)  (U) Post's memorandum should be on Department of State letterhead and should include the following:

Note to Mail Room:  The fee for this petition was accepted by the U.S. Department of State.  The petition needs to be keyed as ‘fee receipted elsewhere’ and routed for normal adjudicative action.

c.  (U) The National Visa Center will forward any petition that is not clearly approvable, along with supporting documents and a memorandum explaining why the petition is not clearly approvable, to the designated USCIS office for adjudication.

(1)  (U) Form I-130: USCIS Nebraska Service Center;

(2)  (U) Form I-130 (adopted children): National Benefits Center;

(3)  (U) Form I-360: USCIS Nebraska Service Center; and

(4)  (U) Form I-600: USCIS National Benefits Center.

9 FAM 504.2-4(A)  (U) Which Petitions Can Be Filed at Post

(CT:VISA-1004;   01-31-2020)

a. (U) The Department of Homeland Security (DHS) has delegated authority to accept petitions for certain immigration benefits to consular officers assigned to visa-issuing posts abroad.  The Bureau of Consular Affairs (CA) has agreed to accept filings of:

(1)  (U) Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, when filed by a widow or widower;

(2)  (U) Form I-600, Petition to Classify Orphan as an Immediate Relative, when accompanied by an approved Form I-600A, Application for Advance Processing of Orphan Petition to accord immediate relative status under INA 201(b) or family preference status under INA 203(a);

(3)  (U) Form I-130, Petition for Alien Relative (for immediate relatives - a U.S. citizen's spouse, a U.S. citizen's unmarried child under the age of 21, or a parent of a U.S. citizen who is 21 years of age or older) in limited exceptional circumstances consistent with 9 FAM 504.2-4(B)(1) below); and

(4)  (U) Form I-130, Petition for Alien Relative (for immediate relatives - a U.S. citizen's spouse, a U.S. citizen's unmarried child under the age of 21, or a parent of a U.S. citizen who is 21 years of age or older) filed by U.S. citizen military service members consistent with 9 FAM 504.2-4(B)(1) below.

b. (U) Although domestic USCIS officers will provisionally approve Form I-800s, consular officers will be responsible for final approval and will have to verify Convention and IAA compliance based in large measure on the Form I-800.

9 FAM 504.2-4(B)  (U) Required Conditions for Filing Petitions at Post

9 FAM 504.2-4(B)(1)  (U) I-600 Petitions and Certain I-130  and I-360 Petitions

(CT:VISA-1151;   09-14-2020)

a. (U) Physical Presence and Residence Requirements:

(1)  (U) In General: You may only adjudicate the above petitions (consistent with additional requirements imposed below) if the petitioner and the beneficiary meet specific physical presence and residence requirements:

(a)  (U) Physical Presence:

(i)     (U) The petitioner and the beneficiary are physically present in the district.  The petitioner must file the petition by personally appearing at the consular section with the original documents.

(ii)    (U) The beneficiary is able to remain in the country for the time it normally takes to process the visa.

(b)  (U) Residence:

(i)     (U) Petitioner:

(A)    (U) Form I-130: A petitioner filing a Form I-130 at post is not required to be a resident of the consular district, but residence may be considered as a factor for acceptance under both the exceptional circumstances and blanket filing authorizations. A petitioner may not file overseas for the express purposes of trying to circumvent the processing times associated with domestic filings;

(B)    (U) Form I-360: A widow(er) of a U.S. citizen self-petitioning under Form I-360 must be a resident of the consular district.  You must require appropriate evidence that the widow(er) has permission to reside in the consular district; and

(C)    (U) Form I-600: A petitioner filing a Form I-600 at post is not required to be a resident of the consular district but must have been, or will be, physically present at some point during the adoption or immigrant visa process (up until visa issuance) within the jurisdiction of the U.S. embassy or consulate designated to act on the petition.  See 9 FAM 502.3-3(C)(3).

(ii)    (U) Beneficiary:  The beneficiary need not be a resident of the consular district.  However, a self-petitioning widow(er) must meet the residence requirements set forth above in 9 FAM 504.2-4(B)(1) paragraph a(1)(b)(i).

(2)  (U) Exception for National Interest or Emergent/Humanitarian Situations:  In emergent or humanitarian cases or in cases of national interest, you may accept and adjudicate an I-360 petition filed by a widow(er) who does not reside within your jurisdiction.  Such cases should be quite rare and limited to true emergency circumstances.  If you believe that such a case qualifies for processing based on humanitarian, emergent, or national interest grounds, post should seek concurrence from your CA/VO/F analyst before accepting the petition.

b. (U) Adjudicating Exceptional Circumstance I-130 Cases:

(1)  (U) If a consular section encounters a case they believe meets the exceptional circumstance criteria outlined below, then the Consular Chief or another designated consular officer may exercise discretion to accept and adjudicate the filing.

(2)  Unavailable

(a)  Unavailable  

(b)  Unavailable  

(c)  Unavailable  

(d)  Unavailable

      Unavailable

(3)  (U) If you decline to accept a local filing, you should inform the petitioner of the decision and direct the petitioner to the USCIS website for information on how to file the Form I-130 at a USCIS lockbox or online in accordance with the USCIS filing instructions.  The USCIS website also provides information on how to contact USCIS about expedite requests. The petitioner does not have the right to appeal, motion, or otherwise request reconsideration of a USCIS or Department of State decision to decline acceptance of a local filing.

(4)  (U) Exceptional Circumstances:  The following are examples of the types of exceptional circumstances where consular officers may opt to accept I-130 immediate relative petitions:

(a)  (U) U.S. Military emergencies:  A U.S. service member, who is abroad but who does not fall under the military blanket authorization for U.S. service members stationed abroad on military bases, becomes aware of a new deployment or transfer with little notice.  This exception generally applies in cases where the U.S. service member is provided with exceptionally less notice than would normally be expected.

(b)  (U) Medical emergencies:  A petitioner or beneficiary is facing an urgent medical emergency that requires immediate travel.

(c)  (U) Threats to personal safety:  A petitioner or beneficiary is facing an imminent threat to personal safety.  For example, a petitioner and beneficiary may have been forced to flee their country of residence due to civil strife or natural disaster and are in precarious circumstances in a different country outside of the United States.

(d)  (U) Close to aging out:  A beneficiary is within a few months of aging out of eligibility.

(e)  (U) Petitioner has recently naturalized:  A petitioner and family member(s) have traveled for the preference immigrant visa interview, but the petitioner has recently naturalized and the family member(s) require a new petition based on the petitioner's citizenship.

(f)   (U) Adoption of a child:  A petitioner has adopted a child abroad and has an imminent need to depart the country.  This type of case should only be considered if the petitioner has a full and final adoption decree on behalf of the child and the adoptive parent(s) has had legal custody of and jointly resided with the child for at least 2 years.

(g)  (U) Short notice of position relocation:  A U.S. Citizen petitioner, living and working abroad, received a job offer in or reassignment to the United States with little notice for the required start date.

(h)  (U) Other:  The Consular Section may exercise its discretion to accept local Form I-130 filings for other emergency or exceptional circumstances of a non-routine nature, subject to the limitations set forth in 9 FAM 504.2-4(B)(1)(f).  However, such filings must be truly urgent and otherwise limited to situations when filing with USCIS online or domestically with an expedite request would likely not be sufficient to address the time-sensitive and exigent nature of the situation.

c.  (U) Temporary blanket authorizations for large-scale disrupting event:  In an event such as a natural disaster or prolonged or severe civil strife, USCIS may give blanket authorization to the Department of State to accept and adjudicate clearly approvable Form I-130 immediate relative petitions from petitioners directly affected by such events. These temporary blanket authorizations do not require, but rather, allow you to use your discretion to accept a Form I-130 at post.  Under this temporary blanket authorization, you may accept a Form I-130 filing by a petitioner who does not reside within post's jurisdiction, bearing in mind that the intent of the authorization is to assist those directly affected by the disruptive event, not to speed up the process for those petitioners who are not directly affected.

d. (U) Adjudicating I-130 Immediate Relative Cases for U.S. Citizen Military Service Members Stationed Overseas:  Consular officers can accept filing and adjudicate a clearly approvable Form I-130, Petition for Alien Relative, filed by a U.S. citizen military service member stationed abroad for any immediate relative.  Exceptional circumstances are not required, and you do not need to seek permission from USCIS to accept an I-130 filed under these circumstances or notify USCIS of the filing.  This blanket authorization does not apply to service members assigned to non-military bases, such as U.S. Embassies or consulates, civilian institutions, or international organizations, or to service members on temporary duty orders.

e. (U) Not Clearly Approvable: The Department may approve only petitions that are clearly approvable.  If you conclude after reviewing the petition that it is not "clearly approvable," you do not have the authority to deny the petition.  You must use the following language to inform the petitioner that the petition is not clearly approvable:

NOTICE OF NCA FORM I-130 Petition

Dear PETITIONER,

Ref:  Case No. [insert Case No.]

The consular section at U.S. Embassy/Consulate [insert name] has determined that your Form I-130, Petition for Alien Relative, on behalf of [insert applicant's name] is not clearly approvable.  Consular officers have limited, delegated authority from U.S. Citizenship and Immigration Service (USCIS) and may only approve Form I-130 petitions that are found to be clearly approvable.  Clearly approvable means that the petition and supporting documentation establish by a preponderance of the evidence that a qualifying relationship with the beneficiary is established as defined by U.S. immigration law.  In a case where the consular officer finds that the evidence presented is insufficient to establish that the beneficiary is eligible for the relevant visa classification under U.S. immigration law, the officer must forward the Form I-130 petition to USCIS for final adjudication. 

Please note that a consular officer’s finding that a Form I-130 petition is not clearly approvable is not a determination or a denial of a Form I-130 petition.  It means that the consular officer is unable to approve the case based on the documentation provided with the Form I-130 petition.

 

Your petition and supporting documents were sent by [insert type of mail] mail on [insert date] to USCIS for review.  Upon receipt of the case file, USCIS will send a Notice of Receipt to you confirming that they have the Form I-130.  Once you have this confirmation that USCIS has received your case, you may seek information on the status of the petition by following the instructions on the USCIS public webpage. These instructions are available at: www.uscis.gov

If you believe your Form I-130 petition needs to be processed earlier than the timeframe cited as USCIS’ normal processing time, you may request expedited processing by following the instructions found on the USCIS website.

Sincerely,

NAME OF OFFICER

Consular Officer

U.S. Embassy/Consulate [insert name]

    (U) Then forward the petition, with all supporting documents and a memorandum explaining why the petition is not clearly approvable, to the National Visa Center.  Post's memorandum should be on Department of State letterhead and should include the following:

Note to Mail Room: The fee for this petition was accepted by the U.S. Department of State. The petition needs to be keyed as ‘fee receipted elsewhere’ and routed for normal adjudicative action. 

    (U) The National Visa Center will forward the petition, documents, and memorandum to the designated USCIS office for adjudication.

f. (U) When the Department of State is Not Authorized to Accept and Adjudicate Form I-130:

(1)  (U) Petitioners Based in the United States: USCIS does not authorize the Department of State to accept a local filing abroad when a petitioner based in the United States seeks to travel and file abroad to expedite processing; and

(2) (U) Petitioners Who Have Already Filed Electronically or Domestically: USCIS does not authorize the Department of State to accept a local filing abroad if the petitioner has already filed a Form I-130 domestically for the same beneficiary.  If exigent circumstances exist, the petitioner should request expedited processing for the electronic or domestically-filed petition.  You should direct the petitioner to the USCIS website for information about the process to request expedited adjudication.

 9 FAM 504.2-4(B)(2)  (U) I-800 Petitions

(CT:VISA-1;   11-18-2015)

(U) Once U.S. citizen prospective adoptive parent(s) (PAP(s)) have accepted the referral of a child from the Central Authority of the country of origin, the PAP(s) file the Form I-800, Petition to Classify a Convention Adoptee as an Immediate Relative.  (See 9 FAM 502.3-4(C)(4).)  The petition must be filed in accordance with instructions associated with the Form I-800.  Consular officers should consult Form I-800 and the instructions to familiarize themselves with current filing requirements; although USCIS officers will provisionally approve Form I-800s, consular officers will be responsible for final approval and will have to verify Convention and IAA compliance based in large measure on the Form I-800.  For a description of key requirements for filing requirements please (see 9 FAM 502.3-4(D)(4)).

9 FAM 504.2-5  (U) Establishing Petitioner Status

9 FAM 504.2-5(A)  (U) Proof of U.S. Citizenship/Lawful Permanent Resident (LPR) Status

9 FAM 504.2-5(A)(1)   (U) Proof of U.S. Citizenship

(CT:VISA-695;   10-12-2018)

(U) See 8 FAM 303.1-1 for a discussion of acceptable evidence of U.S. citizenship. 

9 FAM 504.2-5(A)(2)  (U) Establishing Lawful Permanent Resident (LPR) Status

(CT:VISA-1124;   07-22-2020)

(U) A U.S. citizen petitioner abroad may establish U.S. citizenship by presentation of an unexpired U.S. passport issued initially for the full period of validity to the petitioner as a citizen of the United States, not as a non-citizen national.  If the petitioner intends to mail the application to a DHS office, or is not carrying the passport when seeking to file the petition at a consular office, citizenship may be established by a statement by the consular officer that the petitioner has presented such a passport on some occasion or that post records show the petitioner to be a U.S. citizen who is the bearer of such a passport.  This statement may be written on or attached to the Form I-130, Petition for Alien Relative, Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, or Form I-600, Petition to Classify Orphan as an Immediate Relative.  If the petition is filed at a consular office and the consular officer is not fully satisfied that the petitioner is a U.S. citizen rather than a national, the petition should be considered “not clearly approvable”.  (See 9 FAM 504.2-4(B)(1) above.)

9 FAM 504.2-5(B)  (U) Petitioner Age and Competency

(CT:VISA-1151;   09-14-2020)

a. (U) Under INA 201(b) (8 U.S.C. 1151(b)) a U.S. citizen petitioner must be at least 21 years of age to accord immediate relative status to an alien parent.  Under INA 203(a)(4) (8 U.S.C. 1153(a)(4)) petitioners must be at least 21 years of age to accord family-sponsored fourth preference status to a brother or sister.  Although it is unlikely that any person under age 14 will have reason to file a petition, it is possible that such a person could be a “spouse” or “parent” and therefore be in a position to file a petition on behalf of their spouse or child.  Should this occur, a parent, guardian, or other adult having a legitimate interest in a person who is under 14 years of age may file a petition on that person’s behalf, and the guardian of a mentally incompetent person may file a petition on that person’s behalf.  (See paragraph b below for information about marriage of persons under the age of 18.)  The INA does not establish an age requirement for the petitioner for any of the other immigrant classifications.

b. (U) Marriage of Persons Under the Age of 18:

(1)  (U) Many states impose conditions such as a parental consent, a court order, and/or pregnancy before the state will recognize a marriage in which one or both intending spouses are under the age of 18.  Where the consular officer is faced with determining the validity of such a marriage for consular approval of a petition, the case must be considered "not clearly approvable" and submitted to DHS for approval. 

(2)  (U) In cases where the DHS has approved a petition involving such a marriage, and the consular officer questions its validity but does not believe it necessary to return the petition directly to DHS pursuant to 22 CFR and 9 FAM 504.2-8 below, refer any questions concerning the validity of the petition to L/CA for an AO.

(3)  (U) See 9 FAM 302.8-2for the public charge aspects of an immigrant visa case where the petitioner is under age 18.

9 FAM 504.2-5(C)  (U) Petitioner’s Entitlement to Status

9 FAM 504.2-5(C)(1)  (U) Effect of Marriage Fraud Amendments Act of 1986, Public Law 99-639

(CT:VISA-353;   04-26-2017)

a. (U) The Marriage Fraud Amendments Act of 1986 prohibits DHS approval of petitions in certain instances where the spouse of an alien obtained immigrant status on the basis of marriage which took place while administrative or judicial proceedings were pending.  (See 9 FAM 504.2-5(C)(2) below.)  If the petition is approved by DHS in error, consular officers must return the petition to the DHS adjudicating office.  If such a petition is presented to a consular officer for approval, the consular officer must consider the petition not clearly approvable and forward the petition to DHS.

b. (U) The Immigration Act of 1990, however, provides for an exemption if the petitioner provides clear and convincing evidence that:

(1)  (U) The marriage was entered into in good faith and in accordance with the laws of the place where the marriage took place;

(2)  (U) The marriage was not entered into for the purpose of procuring the alien’s entry as an immigrant; and

(3)  (U) No fee or other consideration was given for the filing of the petition.

9 FAM 504.2-5(C)(2)  (U) Restrictions on Certain Petitioners

(CT:VISA-1004;   01-31-2020)

a. (U) Certain Second Preference Petitions by Aliens Attaining Lawful Permanent Resident (LPR) Status on Basis of Previous Marriage:

(1)  (U) Required Conditions:  The following conditions must be met before a second preference petition can be approved for the spouse of an alien who obtained lawful permanent resident (LPR) status through an earlier marriage:

(a)  (U) Petitioner has been a permanent resident for at least five years; or

(b)  (U) Petitioner’s prior marriage on the basis of which the alien obtained LPR was terminated through the death of the spouse; or

(c)  (U) Petitioner establishes by clear and convincing evidence that the prior marriage was not entered into for the purpose of evading immigration laws.

(2)  (U) Petitions Filed at Consular Offices Abroad:  If the consular officer is presented with such a petition for approval, the petition should be considered “not clearly approvable” and should be sent, along with the supporting documents and a memorandum explaining why it is not clearly approvable, through the NVC to the designated USCIS service center or office in the U.S;

(3)  (U) Petitions Filed with Department of Homeland Security (DHS):  If the consular officer receives a DHS-approved petition and upon review determines that the marriage was entered into for the purpose of evading the immigration laws, the consular officer must return the petition to the National Visa Center (NVC), which will forward to DHS for review and possible revocation.  (See 9 FAM 504.2-8(B)(1) below).

b. (U) Petitions Based on Marriage Occurring While Alien is in Exclusion or Deportation Proceedings or Related Judicial Proceedings:

(1)  (U) Background: 

(a)  (U) The Marriage Fraud Amendment Act of 1986 (Public Law 99-639), prohibits the approval of petitions for aliens seeking to receive an immigrant visa (IV) on the basis of a marriage which was entered into after November 10, 1986, and while administrative or judicial proceedings were pending regarding the alien’s right to enter or remain in the United States until the alien has resided outside the United States for a two-year period beginning after the date of the marriage.

(b)  (U) Section 702 of the Immigration Act of 1990 (Public Law 101-649), amended INA 204 and INA 245, to provide for an exception to the prohibition if there is clear and convincing evidence that the marriage was entered into in good faith. 

(2)  (U) Two-Year Residency Outside United States:

(a)  (U) A petition may not be approved to grant an alien immediate relative (IR) status or preference status by reason of a marriage which was entered into during administrative or judicial proceedings regarding the alien’s right to be admitted or remain in the United States until the alien has resided outside the United States for a two-year period commencing after the date of the marriage.

(b)  (U) An exception to the above may be made if there is clear and convincing evidence that the marriage was entered into in good faith.

c.  (U) Consular officers receiving a petition which appears to fall within the category described in paragraph a(2) above must consider the petition not clearly approvable and must send the petition, along with the supporting documents to DHS for reaffirmation or revocation.

d. (U) Aliens Attempting or Conspiring to Enter into Marriage to Evade Immigration Laws:

(1)  (U) Section 204(c) of the Marriage Fraud Amendment Act of 1986 prohibits the approval of a visa petition filed on behalf of an alien who has been accorded, or sought to be accorded, an IR or preference status as the spouse of a citizen of the United States or the spouse of an alien lawfully admitted for permanent residence, by reason of a marriage determined by the Attorney General to have been entered into for the purpose of evading the immigration laws or if the Attorney General has determined that the alien has attempted or conspired to enter into a marriage for the purpose of evading the immigration laws.  The petition should be denied regardless of whether the alien received a benefit through the attempt or conspiracy.  Although it is not necessary for the alien to have been convicted of, or even prosecuted for, the attempt or conspiracy, the evidence must be documented in the alien’s file.

(2)  (U) Petitions Filed at Consular Offices Abroad:  If the consular officer is presented with such a petition for approval, the petition should be considered “not clearly approvable” and should be sent, along with the supporting documents and a memorandum explaining why it is not clearly approval, through NVC to the designated USCIS service center or office in the U.S.

(3)  (U) Petitions Filed with Department of Homeland Security (DHS):  If the consular officer receives a DHS-approved petition and upon review determines that the marriage was entered into for the purpose of evading the immigration laws, the consular officer must return the petition to the National Visa Center (NVC), which will forward to DHS for review and possible revocation.  (See 9 FAM 504.2-8(B)(1) below).

9 FAM 504.2-6  (U) Consular Procedures for Accepting IV Petitions

9 FAM 504.2-6(A)  (U) Overview

(CT:VISA-1151;   09-14-2020)

a. (U) You may accept jurisdiction for processing certain immigrant visa petitions if the petitioner and beneficiary meet the physical presence and residency requirements (or emergent, humanitarian, or national interest requirements discussed in 9 FAM 504.2-4(B)(1) above) set forth in 9 FAM 504.2-4(B)(1).  The beneficiary need not be a resident of the consular district.  You may exercise such authority with regard only to the approval of the petitions, not to the denial thereof.  You must ensure that the petition meets the appropriate requirements listed in 9 FAM 504.2-4(B) and below before approving the petition.

b. (U) If you determine that a petition is not clearly approvable, you must use the following language set forth at 9 FAM 504.2-4(B)(1) paragraph d to inform the petitioner  You must forward a petition which is not clearly approvable together with all supporting documents and a memorandum explaining why the petition is not clearly approvable to the National Visa Center.  Post's memorandum should be on Department of State letterhead and should include the following:

Note to Mail Room: The fee for this petition was accepted by the U.S. Department of State. The petition needs to be keyed as ‘fee receipted elsewhere’ and routed for normal adjudicative action.

(U) The National Visa Center will forward the petition, memorandum, and documents to the designated USCIS service center or office in the U.S. for adjudication:

(1) (U) Form I-130: USCIS Nebraska Service Center;

(2) (U) Form I-130 (adopted children): National Benefits Center;

(3) (U) Form I-360: USCIS Nebraska Service Center; and

(4) (U) Form I-600: USCIS National Benefits Center. 

c.  (U) You may not approve a Form I-130, Petition for Alien Relative, until after receiving clearance on a background check ("Adam Walsh Act check"), confirming that the petitioner is eligible to file a petition under INA 204(a)(1)(A)(viii) or 204(a)(1)(B)(i).  Otherwise, the Form I-130 is not clearly approvable.  To obtain the Adam Walsh Act check, send the petitioners' biodata to USCIS through the National Visa Center (NVC) (see 9 FAM 504.2-6(D)(2) below.)  You do not need to request an Adam Walsh Act check for a Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, filed by a widow or widower. 

9 FAM 504.2-6(B)  (U) Fee Collection

(CT:VISA-1004;   01-31-2020)

(U) Fee payments must be made at the time the petition is filed with the consular officer and are collected in accordance with standard procedures in 7 FAH-1 H-700.  When collecting such fees, the consular officer annotates the petition with the amount of the fee collected and the date.  Except for petitions that post has determined are not "clearly approvable," post should not collect fees for petitions that will be sent to domestic offices for adjudication.

9 FAM 504.2-6(C)  (U) Consular Officer Action Shown on Petition Form

(CT:VISA-1;   11-18-2015)

a. (U) You must indicate approval of a visa petition by completing the appropriate spaces in the block captioned "FOR USCIS OFFICE ONLY."  Complete the following spaces:

(1)  (U) Petition filing date;

(2)  (U) Box checked "personal interview;"

(3)  (U) Section of the law under which the petition was approved;

(4)  (U) In "Action Stamp" box, add the following information:

(a)  (U) For Form I-130, note that evidence is scanned into the Immigrant Visa Overseas (IVO) case and attached to the petition that USCIS has cleared the petitioner under the Adam Walsh Act;

(b)  (U) Signature of the approving consular officer;

(c)  (U) Title and location of the consular officer; and

(d)  (U) Date of approval.

b. (U) The post must charge the prescribed fee for filing Form I-130, Form I-360, or Form I-600.  When the fee is collected, a notation of "$XX fee received" must be entered in the fee stamp box. (See 8 CFR 103.7 and the USCIS website).

9 FAM 504.2-6(D)  (U) Adam Walsh Check of the Petitioner

(CT:VISA-1004;   01-31-2020)

a. (U) Section 402 of the Adam Walsh Child Protection and Safety Act ("Adam Walsh Act"), Public Law No. 109-248, amended section 204 of the Immigration and Nationality Act to provide that an individual who has been convicted of a specified sexual or kidnapping criminal offense against a minor may not file a petition for a family-sponsored immigrant visa  without a determination by the Secretary of Homeland Security, in the Secretary’s sole and unreviewable discretion, that the petitioner poses no risk to the beneficiary.  The Adam Walsh Act was made effective on July 27, 2006.

b. (U) Under INA 204(a)(1)(A)(viii) or 204(a)(1)(B)(i), a petitioner is not eligible to file such a petition if convicted of such an offense without a determination by the Secretary of Homeland Security, in his sole and unreviewable discretion, that the petitioner poses no risk to the beneficiary.  Because you do not have access to petitioners' criminal history records, which must be reviewed to establish eligibility under the Adam Walsh Act before a family-based petition for immigrant status (Form I-600 or I-130) can be approved it is necessary for USCIS to conduct this review and report whether processing of the petition may proceed.  Although you may accept a petition in certain circumstances, you may not approve a petition until USCIS has conducted the required check and confirmed that the petitioner is eligible to file the Form I-600 or I-130 under INA 204(a)(1)(A)(viii)) or 204(a)(1)(B)(i).  Any petition that had been approved by a consular officer on or after July 27, 2006 without USCIS confirmation of such eligibility to file is not valid unless and until USCIS performs an Adam Walsh Act check and notifies post of the petitioner's eligibility.

c.  (U) When you accept a petition overseas you should first adjudicate the relationship and then send the petitioner’s biodata to the National Visa Center (NVC) following the procedural specifications in 9 FAM 504.2-6(D)(2) below.  NVC will transmit the request to USCIS and will communicate the USCIS response to post.  If the USCIS Adam Walsh Act check reveals any question regarding the petitioner's eligibility under INA 204(a)(1)(A)(viii) or 204(a)(1)(B)(i), post will be instructed to send the petition as "not clearly approvable" to the National Visa Center, which will forward it to the appropriate USCIS office.

9 FAM 504.2-6(D)(1)  (U) Convictions Information and the Adam Walsh Act

(CT:VISA-1004;   01-31-2020)

a. (U) Section 402 of the Adam Walsh Child Protection and Safety Act of 2006 (“Adam Walsh Act”), amended INA 204(a)(1) and 101(a)(15)(K), rendering ineligible to file a petition for immigrant status under INA 203(a) or nonimmigrant K status, any petitioner who has been convicted of a “specific offense against a minor,” defined in section 111 of the Adam Walsh Act as a offense involving any of the following:

(1)  (U) An offense (unless committed by a parent or guardian) involving kidnapping;

(2)  (U) An offense (unless committed by a parent or guardian) involving false imprisonment;

(3)  (U) Solicitation to engage in sexual contact;

(4)  (U) Use in a sexual performance;

(5)  (U) Solicitation to practice prostitution;

(6)  (U) Video voyeurism as described in section 1801 of title 18, United States Code (18 U.S.C. 1801);

(7)  (U) Possession, production, or distribution of child pornography;

(8)  (U) Criminal sexual conduct involving a minor, or the use of the Internet to facilitate or attempt such conduct; or

(9)  (U) Any conduct that by its nature is a sex offense against a minor.

b. (U) Section 402 further provides that the bar against filing a petition because of such a conviction will not apply if the Secretary of Homeland Security, in sole and unreviewable discretion, determines that the petitioner poses no risk to the beneficiary.

c.  (U) USCIS Approved Petitions:

(1)  (U) Because of the Adam Walsh Act, if you know or have reason to believe, at any time prior to visa issuance, that a petitioner who files an approved petition has been convicted of an offense against a minor listed in paragraph a above and that USCIS has not considered the conviction for purposes of determining the petitioner’s eligibility to file, you must send the approved petition to USCIS for a determination of its validity.  In the case of a petition that was approved at post following the necessary USCIS criminal history record search, you must consider the petition not “clearly approvable,” and forward it, with all supporting documents and a memorandum explaining why the petition is not clearly approvable, to the National Visa Center, which will then forward it to the appropriate USCIS office.  The basis for the return would be that information indicating that the petitioner was ineligible to file apparently was not known at the time the petition was approved.  You would not disclose the conviction information to the visa applicant in cases in which the petition was returned because of the Adam Walsh Act.

(2) (U) The Adam Walsh Act’s ban against the filing of a petition for family-based immigrant and K-nonimmigrant visa status by an individual who has been convicted of a specified offense against a minor does not apply if the Secretary of Homeland Security exercises his or her sole and unreviewable discretionary authority and determines that the individual poses no risk to a beneficiary.  You may encounter cases in which the criminal history information reported to post by USCIS relates to a conviction for a crime that is one of the specified offenses against a minor listed in paragraph a of this section.  Provided that the petition reflects that there has been a no-risk determination by the Secretary of Homeland Security and you intend to approve the visa application, you should not forward the petition to USCIS based on the conviction in that instance, but instead consider it to have been properly filed under the Adam Walsh Act, while nonetheless informing the visa applicant of the conviction during the interview if compelling circumstances affecting the health and safety of a beneficiary (see 9 FAM 504.9-8), exists.

9 FAM 504.2-6(D)(2)  (U) Adam Walsh Clearance Request Petition Approval Procedures

(CT:VISA-1004;   01-31-2020)

(U) After accepting a properly filed petition with the fee, you must review the petition to verify the relationship between the petitioner and the beneficiary.  If the relationship appears valid, you must send the petitioner's biodata to the National Visa Center (NVC) to be forwarded to USCIS for a check under provisions of the Adam Walsh Act before approving the petition.

(1)  (U) Provisional Immigrant Visa (IV) Case Should be Opened in Immigrant Visa Overseas (IVO):  A provisional immigrant visa (IV) case must be opened in Immigrant Visa Overseas (IVO) when the petition has been filed and the fee paid.  This is done so that a unique case number can be generated.  The case should remain in provisional status until NVC has returned the results of the Adam Walsh Act check from USCIS.

(2)  (U) Petitioner's Biodata Transmitted to National Visa Center (NVC):

(a)  (U) Until the process can be done electronically through the IVO system, post must e-mail the biodata of the petitioner in an Excel spreadsheet to NVC to forward to USCIS for the Adam Walsh Act check.  Each petitioner's last, first, and middle name must be listed on a single row, and any aliases or versions of the name must be listed in separate rows on the spreadsheet.  All entries must be in capital letters.  The petitioner's name and the aliases will share the same unique identifier that is the post case number. The following columns must be used in this order:

(i)     (U) Post 13 character case number

(ii)    (U) LAST NAME

(iii)    (U) FIRST NAME

(iv)   (U) MIDDLE NAME

(v)    (U) Date of birth (MM/DD/YR)

      (U) DO NOT deviate from this format.  Do not include any other information or columns.  DO NOT include social security number, country of birth, beneficiaries' names, or background information. Do not use prefixes like Rev. or Dr. and suffixes like Jr. or Sr.  Do not use apostrophes, accent marks, or other special characters including characters in foreign alphabets.  Spaces may be used in last, first, and middle names.  Hyphenated names should be entered first with the hyphen and then on another row as an alias with a space, replacing the hyphen.  Names with apostrophes should be entered first without the apostrophe and no space, then as an alias with a space replacing the apostrophe.

(b)  (U) The spreadsheet must match the sample form below, although the columns may be adjusted in size to contain the complete last, first, and middle names.  No names should be truncated in the spreadsheet.  If the petitioner does not have a first or middle name, those columns should be left blank.  Do not use notes like FNU or NMN.

Post Number

Last
Name

First Name

Middle Name

DOB

(MM/DD/YEAR)

 

XYZ2007002001                     

OBRIAN

JOHN

HENRY

01/03/1971

XYZ2007002001

O BRIAN

JOHN

HENRY

01/03/1971

XYZ2007002001

JONES

PAUL

 

03/01/1971

XYZ2007002003

ROJAS-DIAZ

MARIA

ANA

02/04/1976

XYZ2007002003

ROJAS DIAZ  

MARIA   

ANA

02/04/1976

XYZ2007002003

ROJAS

MARIA

ANA

02/04/1976

XYZ2007002003

DIAZ

MARIA   

ANA

02/04/1976

(c)  (U) The spreadsheet must be e-mailed as an attachment to NVCAWA@state.gov.  The subject of the e-mail should be in the following format:  XYZAWA02-27-07A for the first list of the day and any subsequent lists of petitioners' biodata should be XYZAWA02-27-07B, etc.

(3) (U) Post Processing of Adam Walsh Act Namecheck Status:

(a)  (U) National Visa Center (NVC) will forward to post the clearance response from USCIS.  Each petitioner must have a response indicating clearly that the case, identified by the post case number, has cleared or did not clear the Adam Walsh Act process.  The approved results memo for each petition transmitted to post by NVC should be scanned into the case and a copy attached to the petition.  Only information for the petitioner for that individual case should be connected with a single case.  For privacy purposes, Adam Walsh Act clearance response results for a different petitioner should not be included in a case.

(b)  (U) If the results memo returned from NVC for an individual petitioner reports that the case identified by post case number has "cleared" the USCIS check, you may approve the petition and begin processing the immigrant visa case.

(c)  (U) If the status returned for an individual petitioner identified by post case number is "not cleared" because of possible prior conviction of one or more of the cited crimes under the Adam Walsh Act or due to system limitations, post should invite the petitioner to the consular section for fingerprinting with the ink and card process.  Process a non-fee receipt using ACRS code 98 when providing paper fingerprints.  Mail the fingerprint card, the petition, and other relevant documents the National Visa Center, which will forward the petition and documents to the designated USCIS service center in the U.S.

(d)  (U) If the petitioner ultimately clears the USCIS review under the Adam Walsh Act, the petition and documents will be returned to post for visa processing.  If the petition is found not to be approvable, the USCIS office will notify post, and post should close the provisional case in the IVO system.

9 FAM 504.2-7  (U) Adjudicating Petitions

9 FAM 504.2-7(A)  (U) Categories of Petitions

9 FAM 504.2-7(A)(1)  (U) Petition Submitted on Behalf of a Spouse

(CT:VISA-1004;   01-31-2020)

a. (U) A Petition Submitted on Behalf of a Spouse Must be Accompanied by the evidence required in the I-130 instructions, such as:

(1)  (U) A certificate of marriage between the petitioner and the beneficiary;

(2)  (U) Proof of the legal termination of any previous marriage(s) of either party;

(3)  (U) Completed Form I-130A, Supplemental Information for Spouse Beneficiary; and

(4)  (U) A passport-style color photo of the petitioner and a passport-style color photo of the spouse that were taken within 30 days of the date of application.

b. (U) Petition Submitted by a Widow or Widower:   

(1)  (U) The widow(er) of a United States citizen may self-petition for immediate relative status on Form I-360.  The Form I-360 must be filed within two years of the citizen spouse’s death.

(2)  (U) A petition for immediate relative status filed by a widow(er) of a United States citizen must, in addition to the usual evidence for a spousal petition, be accompanied by evidence of the U.S. citizenship and of the death (within the two preceding years) of the deceased marital partner.  The widow(er) may file such a petition only if the marriage to the U.S. citizen was still in effect at the time of the death.  A child of the widow(er) may be included in the petition as a derivative beneficiary.

9 FAM 504.2-7(A)(2)  (U) Petition on Behalf of a Child

(CT:VISA-1;   11-18-2015)

a. (U) A parent filing a petition on behalf of a child must present evidence of his or her own citizen status, as well as of the relationship.

b. (U) A petition submitted by a mother on behalf of a child must be supported by the child's birth certificate showing the current name of the mother.  If the mother's present name differs from that at the time of the child's birth, the mother's marriage certificate and evidence of the legal termination of any prior marriage(s) must be submitted.  If the change of name did not result from the marriage of the mother, other appropriate evidence of the name change must be submitted.

c.  (U) If a petition is submitted by a father on behalf of a legitimate child or is filed by a stepparent, the following documents must accompany the petition:

(1)  (U) A certificate of marriage of the parents;

(2)  (U) Proof of the legal termination of any prior marriage(s) of the parent(s); and

(3)  (U) The birth certificate of the beneficiary.

d. (U) If a petition is submitted by the father of a legitimated child, the petitioner must submit:

(1)  (U) Evidence of the child's legitimation, which must have taken place before the child reached the age of 18;

(2)  (U) Proof of legal termination of any prior marriage(s) if the legitimation was the result of the marriage of the natural parents to each other; and

(3)  (U) The birth certificate of the child.

e. (U) If a petition is submitted by the alleged natural father of a child, born out-of-wedlock, the petitioner must establish that:

(1)  (U) He is the natural father of the offspring; and

(2)  (U) A bona fide parent-child relationship exists or has existed while the child was under the age of 21.

      (Such a relationship exists or has existed when the father displays clearly or has displayed clearly an active concern for the child's support, instruction, and welfare.  Documents to manifest this concern may include (but are not limited to) the child's birth certificate, local civil records, affidavits from knowledgeable persons, and evidence of financial support.  DHS may require blood tests from the petitioner, beneficiary, and the beneficiary's mother.)

9 FAM 504.2-7(A)(3)  (U) Petition on Behalf of a Parent

(CT:VISA-1;   11-18-2015)

a. (U) A petition submitted on behalf of a mother must be accompanied by a copy of the petitioner's birth certificate which shows the current name of the mother.  If the mother's name differs from that on the petitioner's birth certificate, evidence showing the name of the mother at the time of the child's birth (for example, a marriage certificate of the mother having the name shown on the petitioner's birth certificate) must be submitted.

b. (U) If a petition is submitted on behalf of a father of a legitimate child or on behalf of a stepparent, the petitioner's birth certificate, the marriage certificate of the parents, and proof of the legal termination of any prior marriage(s) of either parent must accompany the petition.

c.  (U) If a petition is submitted on behalf of a father of a legitimated child, the petitioner's birth certificate, evidence that legitimation took place before the petitioner reached age 18, and, if legitimation occurred through marriage of the natural parents to each other, evidence of the legal termination of any prior marriage(s) of either parent must accompany the petition.

d. (U) If a petitioner born out of wedlock submits a petition on behalf of his or her father, evidence to show that the beneficiary is the natural father of the petitioner and that a parent-child relationship exists or has existed must accompany the petition.  (See 9 FAM 504.2-7(A)(2) above.)

9 FAM 504.2-7(A)(4)  (U) Petition on Behalf of an Orphan

(CT:VISA-1004;   01-31-2020)

a. (U) You are authorized to approve orphan petitions when the DHS district director at a stateside office has made a favorable determination concerning an advance processing application.  This will be reflected by receipt of the approved Form I-600-A, Application for Advance Processing of Orphan Petition, which NVC will upload to IVO via eDP.  The occasion will arise when the prospective petitioner (or married petitioner and spouse) has traveled abroad to:

(1)  (U) Adopt a known child (after both the petitioner and spouse, if any, have personally seen and observed the child);

(2)  (U) Facilitate the adoption in the United States of a known child; or

(3)  (U) Locate and adopt a child.

b. (U) Your adjudication of the petition must include all aspects of eligibility for classification as an orphan under INA 101(b)(1)(F)), other than the ability of the prospective parent(s) to furnish proper care for the beneficiary orphan.  (See 9 FAM 502.3-3(C)(3).)  You must forward for adjudication by the USCIS any petition which is not clearly approvable.  (See 9 FAM 602.2-2(A).)

9 FAM 504.2-7(A)(5)  (U) Petition on Behalf of a Convention Adoptee as an Immediate Relative

(CT:VISA-1;   11-18-2015)

(U) Once U.S. citizen Prospective Adoptive Parent(s) (PAP(s)) have accepted the referral of a child from the Central Authority of the country of origin, the PAP(s) file the Form I-800, Petition to Classify a Convention Adoptee as an Immediate Relative.  (See 9 FAM 502.3-4.)  The petition must be filed in accordance with instructions associated with the Form I-800.  Consular officers should consult Form I-800 and the instructions to familiarize themselves with current filing requirements; although USCIS officers will provisionally approve Form I-800s, consular officers will be responsible for final approval and will have to verify Convention and IAA compliance based in large measure on the Form I-800.  For a description of key requirements for filing requirements please (see 9 FAM 502.3-4(D)(4)).

9 FAM 504.2-7(B)  (U) Additional Information

(CT:VISA-1;   11-18-2015)

a. (U) Immediate Relative, Orphan, Amerasian, or Widow(er):  For additional information on classification as an immediate relative under INA 201(b)(2)(A)(i), an orphan as defined in INA 101(b)(1)(F), a widow or widower of a U.S. citizen eligible under INA 201(b)(2)(A)(i), or an Amerasian eligible under Public Law 97-359, see 9 FAM 502.3-1.

b. (U) Classification as Family-Preference Immigrant:  For information on classification as a family-preference immigrant under INA 203(a)(1) - (4), see 9 FAM 502.2.

c.  (U) Married Woman as Petitioner or Beneficiary:  If the petitioner or the beneficiary is a married woman, her marriage certificate usually must be submitted with the petition.  However, when the petitioner and beneficiary are mother and child, regardless of the child's age, the mother's marriage certificate need not be submitted if the mother's present name appears on the child's birth certificate.

d. (U) Evidence of Legal Termination of a Marriage:  Primary evidence to establish legal termination of a marriage consists of the divorce decree, the annulment document, or the death certificate of a prior spouse.

e. (U) Alien Entitled to More than One Classification:  If an applicant becomes entitled to more than one immigrant classification, a separate case should be created in the automated system for each classification.  The two cases should be physically filed in the same folder.

9 FAM 504.2-8  (U) Revocation and Revalidation of Immigration Visa Petitions

9 FAM 504.2-8(A)  (U) Suspending Action and Returning Petitions

(CT:VISA-1087;   06-22-2020)

a. (U) The Department of Homeland Security (DHS) possesses exclusive authority over the approval and denial of immigrant visa petitions (except for those filed for aliens classifiable under INA 203(c) or INA 101(a)(27)(D)).   

b. (U) Therefore, it is your responsibility to review, not to readjudicate petitions.  However, in the course of that review, if you obtain sufficient facts so that you know or have reason to believe that the beneficiary is not entitled to the status approved in the petition you will return the petition to the U.S. Citizenship & Immigration Services (USCIS) through the National Visa Center (NVC). DHS regulations governing the revocation of petitions are provided in 9 FAM 504.2-1 above.

c.  (U) Petitions being returned to NVC for processing should be sent following the procedures in 9 FAM 601.13-3(D).

9 FAM 504.2-8(A)(1)  (U) Termination of Action

(CT:VISA-848;   06-04-2019)

a. (U) You Must Terminate Action on a Visa Petition:

(1)  (U) Upon receipt of notification from USCIS that the petition has been revoked under 8 CFR 205.1;

(2)  (U) If the petition is automatically revoked under 8 CFR 205.1; or

(3)  (U) If the petition is automatically revoked under INA 203(g).  (See paragraphs b and c below.)

b. (U) When a Registration is Terminated Under INA 203(g), Posts Shall Take the Following Action:

(1)  (U) Send the applicant Final Notice of Cancellation of Registration, under Section 203(g).  (See 9 FAM 504.13); and

(2)  (U) Destroy the petition (see 9 FAM 504.13-4(A)).

9 FAM 504.2-8(A)(2)  (U) When to Suspend Action and Return Petitions

(CT:VISA-1;   11-18-2015)

(U) You will suspend action and return the petition to USCIS (see 9 FAM 504.2-8(B)(1) below through NVC if:

(1)  (U) The petitioner requests suspension of action;

(2)  (U) You know, or have reason to believe the petition approval was obtained by fraud, misrepresentation, or other unlawful means; or

(3)  (U) You know or have reason to believe that, despite the absence of fraud, due to changed circumstances or clear error in approving the petition the beneficiary is not entitled to the approved status.

(4)  (U) "Reason to Believe":  In general, knowledge and reason to believe must be based upon evidence that USCIS did not have available at the time of adjudication and a determination that such evidence, if available, would have resulted in the petition being denied.  This evidence often arises as a result of or during the interview of the beneficiary.  Reason to believe must be more than mere conjecture or speculation—there must exist the probability, supported by evidence, that the alien is not entitled to status.

(5)  (U) Cases of Sham Marriages:  USCIS has minimum evidentiary standards that must be established before revocation proceedings in a case based upon a marital relationship may begin.  These minimum evidentiary standards are:

(a)  (U) A written statement from one or both of the parties to the marriage that the marriage was entered into primarily for immigration purposes;

(b)  (U) Documentary evidence that money changed hands under circumstances such that a reasonable person would conclude the marriage was a paid arrangement for immigration purposes; or

(c)  (U) Extensive factual evidence developed by the consular officer that would convince a reasonable person that the marriage was a sham marriage entered into to evade immigration laws.

9 FAM 504.2-8(B)  (U) Returning Petitions

9 FAM 504.2-8(B)(1)  (U) Actions to Take Upon Suspension

(CT:VISA-1124;   07-22-2020)

a. (U) Prepare a memorandum which constitutes a comprehensive report to USCIS explaining in detail the reasons why the beneficiary appears not to be entitled to status (see 9 FAM 504.2-8(B)(2) below);

b. (U) Create a revocation re quest through the CCD based Petition Electronic Routing Tool (PeRT) for MIV, PIVOT based cases or send the original physical petition along with the memorandum, directly to:

National Visa Center
32 Rochester Ave.
Portsmouth, NH  03801
Attn:  Fraud Prevention Manager

c.  (U) Retain a copy of the petition, the supporting documents and the memorandum (either scanned into CCD or a paper copy in a paper file).  All immigrant visa petitions being returned for revocation must contain the original or scanned petition along with the revocation request.  If the original petition has been lost or misplaced, please indicate this in your revocation request memorandum; and

d. (U) It is mandatory to scan all revocation requests into the Consular Consolidated Database (CCD), along with at least a minimal amount of supporting documentation.

9 FAM 504.2-8(B)(2)  (U) Returning Petitions for Possible Revocation

(CT:VISA-1151;   09-14-2020)

a. (U) If U.S. Citizenship and Immigration Services (USCIS) requests the return of a petition, or if you know or have reason to believe, that the alien beneficiary of an approved petition is not entitled to the accorded status, you will return the petition to USCIS through the National Visa Center (NVC).  (See 9 FAM 601.13-3(D).)  No petition revocation requests should be sent directly to USCIS in the United States.  All cases that are immigrant visa (IV), and K, V, asylee and refugee petitions being returned for revocation should be sent to NVC for processing.

(1)  (U) A Form I-130, Petition for Alien Relative, filed and approved overseas, or found “not clearly approvable” by you, will be sent directly to the National Visa Center, which will forward the petition to the designated USCIS service center or office in the U.S.  That office will make the determination on the request.  (See 9 FAM 504.2-3(B) and 9 FAM 504.2-4(A) and 9 FAM 504.2-6(A).)

(2)  (U) The original petition will be returned, physically if an IVIS case or electronically through PeRT for PIVOT cases, along with all supporting documents and a memorandum supporting the recommendation for revocation.  The report must be comprehensive, clearly showing factual and concrete reasons for revocation.  The report must be well reasoned and analytical rather than conclusory.  Observations made by you cannot be conclusive, speculative, equivocal or irrelevant.

b. (U) When returning petitions for revocation, include as much information as possible.  Provide documentation, including relevant translations, memoranda of interviews, etc.  USCIS must have the back-up documentation; just saying something is so will not meet the evidentiary standards required of USCIS to permit or sustain a revocation.  If a case is being returned because the petitioner and applicant failed a Deoxyribonucleic Acid (DNA) test, be sure to include the DNA test results.  When possible, take signed sworn statements, especially when an applicant and/or petitioner admits during the interview that the primary purpose of the relationship is to circumvent U.S. immigration laws.  Signed statements are of greater value than second hand reports.  When a statement is prepared in English by a non-native English speaker, it should be proofread carefully.  Posts can consult with L/CA on cases where there are questions or concerns over the sufficiency of evidence cited in the memo supporting a petition return.

c.  (U) If returning a petition for revocation based on a local custom/law or religious doctrine, be sure to include documentation of the custom/law/doctrine together with an English translation.  For example, if you are returning a petition because a religious text that states a woman must wait a certain period of time after divorcing in order to remarry, include a copy of the relevant passage for the USCIS adjudicator to review.  In most cases, USCIS will not have the ability to look up local customs/laws or religious doctrines, so it is important for posts to provide as much information as possible.

d. (U) When post determines that a petition should be returned with a request for revocation, the procedures set out in the revocation guide available on the CA/FPP website should be followed.  Additional assistance in writing revocation memoranda can be found on the "Fraud Prevention Resources" page of the Consular Affairs Intranet site which has sample revocation letters for a variety of petition types.

9 FAM 504.2-8(B)(3)  (U) Investigation Requests

(CT:VISA-1;   11-18-2015) 

a. (U) In some cases you may determine that there is sufficient evidence to justify requesting a USCIS investigation in order to combine USCIS’ findings with the facts developed at post to make a case for revocation.  You should submit such a case to USCIS as an investigation request.  (See paragraph b below.)

b. (U) It is essential in preparing this type of case to specify exactly what aspects of the case should be pursued in the United States.  For USCIS to make a case for revocation, they must have all the facts developed overseas as well as those facts developed in the course of their investigation.  You should carefully set forth all the facts that can reasonably be developed to be included in the memo requesting the investigation.  You should include the originals of all documents that have a bearing on the case as evidence.

9 FAM 504.2-8(B)(4)  (U) Disclosing Information From Visa Files to U.S. Citizenship and Immigration Services (USCIS) in Petition Revocation Cases

(CT:VISA-1;   11-18-2015)

a. (U) Because petitioners have a right to know why their petitions are denied, or approval is being revoked, all information provided to USCIS in revocation proceedings which is not classified is subject to release by USCIS.  In this regard, information coming from sources which the post feels should be held confidential and not released to the petitioner should be presented to USCIS in a form which protects the identity of the source.  All classified information should be clearly identified as classified and not releasable to prevent accidental release by USCIS.

b. (U) As the final statutory responsibility for evaluating the factual evidence and drawing legal conclusions rests with USCIS, posts should take care to present the factual record developed pertaining to the provability of the petition and avoid unnecessary evaluative or conclusive comments and the inclusion of information not directly relevant to the issue.  Posts should also refrain from including derogatory characterizations and emotionally charged or imprecise phrases in reports to USCIS.  These remarks have little evidentiary value, and may prove embarrassing when they end up in the hands of the petitioner.  (For release of information directly by you, to the petitioner see 9 FAM 603.2.)

9 FAM 504.2-8(B)(5)  (U) Receiving Requests From Petitioner, Applicant, or Representative

(CT:VISA-1;   11-18-2015)

(U) If post receives a request from the petitioner, applicant, or attorney/representative on the status of a petition that has been returned to USCIS for revocation, post should refer the requestor to the USCIS office that adjudicated the petition, not to NVC.  Petitions sent to NVC are only retained for a short time before they are sent to USCIS.  It may be helpful for post to remember that processing and investigations at NVC are internal and non-adjudicatory, meaning that NVC’s results and conclusions are advisory only for posts and USCIS but have no legal effect.  Therefore, it is important that petitioners, applicants, and attorney/representatives not be referred to NVC.

9 FAM 504.2-8(C)  (U) Reaffirmation/Reinstatement of Visa Petitions

9 FAM 504.2-8(C)(1)  (U) Reaffirmation by USCIS

(CT:VISA-1151;   09-14-2020)

a. (U) If USCIS reaffirms a petition which has been returned, and you have no additional factual evidence to submit to support the belief that an alien is not entitled to status, except in the rare cases discussed in paragraph a below, you must process the case to conclusion.

(1)  (U) When Consul Disagrees With Reaffirmation but Has No Evidence:

(a)  (U) In the rare case where you may irreconcilably disagree with the USCIS decision to uphold the validity of the petition, if you have no new evidence to present which was not previously considered by USCIS, you must send the entire case to L/CA for review and discussion with USCIS/HQ.  Such referrals should be rare, however, since the burden of proof still rests with USCIS and protracted delay without sufficient reason is unfair to the visa applicant.

(b)  (U) It should be remembered that USCIS bears a high burden of proof (good and sufficient cause) in revocation proceedings.  Although you may believe that the evidence leads a reasonable person to believe that the alien is not entitled to status, the evidence of record may not be sufficient to meet the higher standard of proof required in these proceedings.

(2)  (U) Consul Disagrees With Reaffirmation and Has New Evidence to Present:  Despite the fact that USCIS reaffirms the petition, if you discover substantial new evidence not considered by USCIS in its decision to reaffirm, you may return the petition to USCIS through NVC without referring the case to L/CA.

b. (U) Petitions being return to NVC for processing should be sent following the guidance in 9 FAM 601.13-3(D).

9 FAM 504.2-8(C)(2)  (U) Extending Petition Following Petitioner's Death

(CT:VISA-353;   04-26-2017)

(U) A petition automatically revoked, due to the death of the petitioner, may be reinstated by USCIS if you believe that special humanitarian consideration warrants reinstatement.  If the beneficiary is related to the deceased petitioner in any other way other than by marriage, the petition should be returned to USCIS with a notation regarding a recommendation for humanitarian reinstatement clearly stated on the return memo. The determination for reinstatement is made by USCIS. See 9 FAM 502.1-2(D) for information on automatic conversion of a Petition for Alien Relative, Form I-130, to a Petition for Amerasian Widow(er), or Special Immigrant, Form I-360, upon the petitioner's death in the case of an immediate relative spouse (now widow(er) of a U.S. citizen).

9 FAM 504.2-8(C)(3)  (U) Reconstructing Erroneously Suspended EW3 Petitions

(CT:VISA-1;   11-18-2015)

a. (U) If upon review, you determine that an EW3 petition suspension was erroneously suspended and returned to USCIS was not justified by the evidence or was based on a misreading of the law, you should consider the petition to be readjudicated.  In accordance with 9 FAM 504.2-8(B)(1), posts should retain a copy of a petition, along with the supporting documents, which is returned to USCIS.  When applicants reapply for a visa based on these petitions, you will strike the cancellation mark for those labor certifications marked canceled.  The labor certification should now be treated as valid and marked in the upper right hand corner:

          "OVERCOME:  LABOR CERTIFICATION CANCELLATION REVERSED"

    NOTE:  The date, post and consular officer's signature should appear over the post stamp.

b. (U) If the post has not maintained a copy of part, or all, of the petition including the labor certification, post is authorized to accept as valid a certified copy of the petition or part of the petition, if there is no reason to believe that such copy is materially different from the original.  The post may also obtain documents from the USCIS service center to which they originally returned the petition, although USCIS may not have retained a copy.

c.  (U) If the post issues a visa based on the reconstructed petition, post should package the petition under normal procedures with an additional official notation to USCIS at the port-of-entry indicating that the petition has been reconstructed by the consular officer, and has been cleared by USCIS/HQ and should be accepted as valid.  The official notification to the USCIS port-of-entry should include the standard language - "Reconstructed Petition Approved" the date, post and consular officer's signature over the post stamp on the first page of the petition.

9 FAM 504.2-8(C)(4)  (U) Recommending Reinstatement of Petition

(CT:VISA-1004;   01-31-2020)

a. (U) If the consular officer believes that a petition revoked under 8 CFR 205.1(a)(3) warrants DHS consideration for humanitarian reasons, the consular officer should prepare a memorandum requesting such consideration and forward it with the petition to DHS.  In evaluating requests for reinstatement of a petition under such circumstances, DHS has considered the following factors:

(1)  (U) Disruption of an established family unit;

(2)  (U) Hardship to U.S. citizens or lawful permanent residents;

(3)  (U) If beneficiary is elderly or in poor health;

(4)  (U) If beneficiary has had lengthy residence in the United States;

(5)  (U)  If beneficiary has no home to go to;

(6)  (U) Undue delay by DHS or consular officer in processing petition and visa; and

(7)  (U) If beneficiary has strong family ties in the United States.

b. (U) In the case of a petition approved by a stateside Department of Homeland Security (DHS) office, the consular officer must send the memorandum and petition through the National Visa Center (NVC) (see 9 FAM 504.2-8(B)(1)) to the DHS District Director having jurisdiction over the petitioner’s place of residence in the United States.  If the petition was approved either by a DHS officer abroad or by a consular officer, the consular officer must also send the petition and memorandum to the NVC who will route it to the designated USCIS service center or office in the U.S.

c.  (U) If the consular officer does not believe that the humanitarian reasons are sufficient to warrant DHS action, but the alien beneficiary or other interested party inquires about such action, the consular officer should instruct the individual concerned to communicate with the approving DHS office.

9 FAM 504.2-9  (U) REtention of petitions with undeliverable correspondence

(CT:VISA-1;   11-18-2015)

a. (U) Immigrant visa (IV) petitions related to undeliverable correspondence must be kept in the file until the post receives information which would reflect the status of petition and/or the beneficiary:

(1)  (U) This is particularly important in cases in which instruction packages for IV applicants cannot be delivered; and

(2)  (U) You should add a comment in the IVO system documenting the fact that correspondence was returned “undeliverable.”

b. (U) At NVC, the electronic case record will be updated to document the fact that:

(1)  (U) Physical correspondence was returned “undeliverable,” but the physical letter will be destroyed after the update;

(2)  (U) If the Postal Service provides an updated address on the returned mail, NVC will update the address in IVIS and resend the letter; and

(3)  (U) An email was "undeliverable," then the letter will be resent via postal service.

UNCLASSIFIED (U)