New York Lawyer's Legal Updates

Filing I-130 Abroad By Military Petitioner

Author: Green Card Lawyer Alena Shautsova

An I-130 form is a U.S. Immigration document that needs to be filed in order for a U.S. citizen or a permanent resident to sponsor a family member. This form is necessary for a husband to sponsor wife, for a brother to sponsor a brother and for a parent to sponsor a child.

Usually, the form has to be filed within the United States. The actual filing address varies and based on the filer’s residency and other forms that are filed together with the I-130. For example, during the adjustment of status, one would file I-485 and accompanying forms together with the I-130 form.

There are limited exceptions when the U.S. government allows for the filing to be done overseas with the USCIS office abroad or a consulate. Specifically, if a petitioner is in the U.S. military, her petition can be filed with an overseas consulate. The USCIS International Operations Division has recently granted blanket authorization for consular posts to accept and adjudicate Forms I-130, Petition for Alien Relative, from certain active duty U.S. military personnel (see 9 FAM 504.2-4(A)(4), FAM updated 15 September 2015).

Those military members who are on active duty, can continue to file I-130 petitions with local international USCIS offices if they reside in the same country as that office. Now, the Department of State will accept and adjudicate an I-130 petition filed by an active-duty member of the U.S. military stationed overseas in a country without a USCIS presence, without having to demonstrate exceptional circumstances. In such cases, the petitioner does not need to seek advance permission of USCIS before filing the petition. The petitioner must be considered on "active duty" and must work on a military base. As such, individuals working on temporary orders or working at U.S. embassies or at civilian institutions will not qualify for the blanket authorization.

It should be noted that consular officers at posts in countries without a local USCIS office are only authorized to adjudicate "clearly approvable" cases (see 9 FAM 504.2-4(a)). If the petition is not clearly approvable, the consular officer, who lacks the authority to deny the petition, will forward it and the supporting documents to the appropriate USCIS office with jurisdiction over that location (See 9 FAM 504.2-4(B)(1)(d)). Further, consular officers may only adjudicate petitions if the petitioner and the beneficiary meet the specific physical presence and residence requirements (See 9 FAM 504.2-4(B)(1)):

a. Physical Presence and Residence Requirements: You may only adjudicate the above petitions if:

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

  • Physical Presence:
    • The petitioner and the beneficiary are physically present in the district.
    • The beneficiary is able to remain in the country for the time it normally takes to process the visa.
  • Residence:
    • Petitioner:
      • The petitioner must be a resident of the consular district.
      • A widow(er) of a U.S. citizen self-petitioning under Form I-360 must be a resident of the consular district.
    • Proof: You must require appropriate evidence that the petitioner has permission to reside in the consular district, or if he/she is member of the U.S. military stationed in the country, a copy of the petitioner's orders.
    • Beneficiary: The beneficiary need not be a resident of the consular district.

As such, the new rule should save a lot of time and speed up the family reunification process because now, military personnel stationed in countries without USCIS offices may file I -130s with consulates for their spouses, children and parents.

*According to FAM, Exception circumstances include:

  • Exceptional Circumstances:  The following are examples of the types of exceptional circumstances where consular officers should request exceptional authorization from USCIS to accept I-130 immediate relative petitions:
  • U.S. Military deployment or transfer: A U.S. service member overseas, assigned to non-military bases or on temporary duty orders, becomes aware of a new deployment or transfer with very little notice. This should be an exception to the regular relocation process for most service members.
  • Medical emergencies:  A petitioner or beneficiary is facing an urgent medical emergency that requires immediate travel.  This includes if the petitioner or beneficiary is pregnant and delaying travel may create a medical risk or extreme hardship for the mother or child.
  • Threats to personal safety:  A petitioner or beneficiary is facing an imminent threat to personal safety.
  • Cases close to aging out:  A beneficiary is within a few months of aging out of eligibility.
  • Cases where the petitioner has recently naturalized:  The petitioner and family have traveled for the immigrant visa interview but the petitioner has naturalized and the family member(s) require a new, stand-alone petition.
  • Adoption of a child:  A petitioner who has adopted a child locally and has an imminent need to depart the country. This exception should only be considered if the child has been in the petitioner’s legal and physical custody for at least two years and the petitioner has a full and final adoption decree on behalf of the child.
  • Short notice of position relocation:  A U.S. Citizen petitioner, living and working abroad, who receives a job relocation within the same company or subsidiary to the United States, or an offer of a new job in the United States with very little notice.
28 April 2016
Watch Our YouTube Channel Free Legal Videos