Consulates No Longer Authorized to Adjudicate I- 130s

US consular offices abroad no longer accept or process I-30 petitions for family-based immigration status, according to a recent memo from the Department of State. They may, however, provide guidance to the petitioner and the relatives being sponsored. Previously, relatives could be petitioned by a US citizen residing abroad.

Under this new rule, which takes effect immediately, the USCIS now has the exclusive responsibility for accepting and processing these relative petitions.

The I-130 petition must be filed with the USCIS office having jurisdiction over the US residence of the petitioner. If an I-130 petition had already been accepted, the consular office is required to forward the petition and supporting documents to the appropriate USCIS office on a “not clearly approvable” basis.

Some delay should be expected in the processing of I-130 cases as a consequence of this regulation.

Unlike the USCIS, consular offices do not have access to criminal history records of petitioners, which will determine eligibility to file an immigrant relative petition.

A thorough background check of the petitioner is mandated under the recently enacted Adam Walsh Child Protection and Safety Act of 2006. The law gives the Secretary of Homeland Security sole and unreviewable discretion to bar the filing of a petition if the petitioner had been convicted of any of the specified offenses against a minor.

These offenses include: (a) kidnapping (unless committed by a parent or guardian); (b) an offense involving false imprisonment (unless committed by a parent or guardian); (c) solicitation to engage in sexual conduct; (d) use in a sexual performance; (e) solicitation to practice prostitution; (f) video voyeurism as described in the US Code; (g) possession, production or distribution of child pornography; (h) criminal sexual conduct involving a minor or the use of the Internet to attempt or facilitate such conduct; and (i) any conduct that by its nature is a sex offense against a minor.

Although many would balk at the ensuing delay brought about by the above regulation, the Department of State recognizes that immigrant petitions may be used as a devise for predatory conduct on minors, especially if these minors come from relatively poor countries. This regulation yields to the tried and tested advice concerning the welfare of children—better safe than sorry.