Friday, August 17, 2012

Handling Consular Processing

When you are handling a consular processing case, it is often important to remember with whom you are dealing.  All people who join the US foreign service will do a rotation in the consular division.  That means that many of the people in the Consular Section are just "doing their time," until it is their turn to move into a policy position.  In many cases, the consular staff may not be as well trained as USCIS officers on the intricacies of immigration law.  Many of them will simply be looking to the Foreign Affairs Manual, and applying it as if it were law.

For an immigration attorney, that usually means being polite, and sometimes going with the flow.  For example, there may be complications in analyzing just how many co-sponsors are needed in a particular case.

All family-based immigrants need a sponsor.  That is, they need someone who will promise to be financially responsible for the immigrant to assure the US Government that the immigrant won't become a public charge (i.e. go on welfare).  The sponsor must make 125% of the poverty level for the size of the sponsor's family, plus the immigrant (100% poverty level if the petitioner/sponsor is in the military).  So, if the sponsor has a family of 4, and is sponsoring 1 immigrant, the sponsor's income must be above 125% of the poverty level for a family of 5.

The petitioner must always act as a sponsor.  But, if the petitioner's income is not enough to meet the requirement, the petitioner needs a co-sponsor.  The co-sponsor must also have a sufficient income to support his or her family, plus the immigrant at 125% of poverty level.

The complication for the Consular staff is analyzing the Affidavit of Support, which is the form the sponsor and co-sponsors use to show their willingness to be financially responsible.

When you have an immigrant who is coming in under the preference system, that immigrant may have derivative beneficiaries.  For example, if a permanent resident files a petition for a foreign spouse, and that foreign spouse has minor children, the minor children can immigrate as derivative beneficiaries of the foreign spouse.  In this situation, the sponsor files one form, and lists all of the derivative beneficiaries on the form.

When the immigrant is  the spouse of a US citizen, then the immigrant is considered an "immediate family member."  Immediate family members get their visas sooner, but cannot have derivative beneficiaries.  That means that if the foreign born spouse has minor children, the US citizen spouse has to file separate visa petitions for the foreign spouse and each of the minor children.  This also means that separate affidavits of support have to be filed for the foreign spouse and each minor child.

Consular staff do not always get this.  They see a family immigrating, and assume that the head of the family is the principal beneficiary, and each of the children are derivative beneficiaries.  So, they may expect one affidavit of support, with the children listed as derivative beneficiaries.

This is not the proper way of doing things.  With immediate relatives, each immigrant has a separate petition, and each should have a separate affidavit of support.

As an attorney, the first line of communication should be to try to explain this to the Consular staff.  But, you need to approach this with the understanding that the Consular staff may not be as well trained as you would like, and will likely stick to their guns, even if they are wrong.  Thus, you should have prepared the second line of communication.  Be ready to submit the forms the way the Consular staff is requesting, but with a polite explanation of why you think this is the wrong way to do it.  That way, you don't cause too much of  a delay in processing the visa, and getting the family members over to the United States as soon as possible.

This is another reason why it is important to have an attorney assist you in the Consular Processing stage.  Some of the rules are very esoteric, and having someone who understands immigration law and immigration law speak could help move things along much quicker.

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