The Manila Times

Changing embassies for visa interview

CRISPIN R. ARANDA

WHEN does a visa beneficiary get his or her green card? Who is the visa beneficiary? He or she is the person being petitioned or sponsored by a qualified family member in the United States.

Who can sponsor or file a petition for a non-citizen relative?

Earlier this year, the Biden administration issued instructions to use the “non-citizen” designation instead of “alien” to a person without lawful status in the US as well as beneficiaries outside the United States.

The qualified family member eligible to file a petition may be a US citizen or a lawful permanent resident, or LPR (green card holder).

A US citizen may file a petition for a fiancée, spouse, children regardless of age and marital status, parents and siblings.

An LPR may only file a petition for a spouse and unmarried children regardless of age.

When the petition is approved, an interview precedes the green card issuance.

Is it after the immigrant visa interview?

Yes and no.

Yes, if the visa applicant is applying for an immigrant visa outside the United States.

No, if the applicant is in the United States, because in that scenario he or she is applying for adjustment of status — assuming that the applicant is eligible to apply at the time of adjustment interview.

The immigrant visa applicant and the applicant for adjustment of status will both be interviewed.

The former at his or her country of nationality. The latter at the US Citizenship and Immigration Services (USCIS) office in the district, which has jurisdiction over the applicant/petitioner’s place of residence in the United States.

In both cases, the interview will be scheduled if the priority date of the beneficiary is current, meaning an immigrant visa is already available not just for the principal applicant (beneficiary) but also for the dependents (spouse and/or minor children below 21). In some cases, children over 21 years of age may still qualify as “minors” under the Child Status Protection Act (CSPA).

The US citizen or LPR relative filing the petition on Form I-130, petition for alien relative, is the petitioner. Note that the form still refers to the beneficiary as an “alien” not a “non-citizen” relative.

The family member being petitioned is the beneficiary. Only the name of the beneficiary will appear on the petition form when the USCIS issues the receipt notice and subsequently, the approval notice.

At the time of the filing of the petition, the beneficiary may or may not be married. He or she may or may not have children when the petition is filed.

At the time of the interview (in or outside the US) the beneficiary may already have dependents (spouse, minor children) who shall be entitled to the same visa classification as the beneficiary.

If the applicant is in the US, the interview will be held in the specific USCIS district office such as in San Francisco, Los Angeles, Las Vegas, New York, Seattle or Miami.

A beneficiary applying for an immigrant visa is scheduled for an interview at the consular post indicated in the I-130 form when it was filed.

For example, an I-130 petition form filed on May 8, 2009 should indicate that the beneficiary will apply for his or her visa at the US Embassy in Manila, Philippines.

What if the beneficiary was in the US on a valid non-immigrant visa (e.g., a B-1/B-2, tourist, student or working visa) when the petition was filed?

Consular post or embassy specified

Part 4, page 7 of the current I-130 form asks for specific information.

Item 45 of part 4, page 7 asks: “Was the beneficiary ever in the US? Yes, or No.”

If the beneficiary is currently in the US, the applicant or whoever is completing the form is instructed to complete item numbers 46a. – 46.d and provide information as to

-- When the applicant arrived in the US

-- Class of admission

-- I-94 arrival-departure record number

-- Date authorized stay expired, or will expire as shown on the I-94; and

-- The applicant’s passport information, number, country of issuance and expiration date

Still on Part 4, item 62.a the form provides the choice: “The beneficiary will not apply for adjustment of status in the United States but he or she will apply for an immigrant visa abroad at the US Embassy or US consulate in a specified city, province and country.

A tourist visa holder in the US is admitted for a temporary period of authorized stay. Logically, he or she will apply for the immigrant visa at the specified consulate e.g., US Embassy, Manila.

However, if the petitioner inadvertently states that the beneficiary is in the US and will apply for adjustment of status in the US — although the beneficiary shall return to the Philippines to apply for his or her immigrant visa, the beneficiary would be asked to apply for change of venue.

Instead of applying for adjustment of status, the beneficiary should complete the Form I-824 application for action on an approved application or petition.

OFW dilemma

Hannah is a nurse working in Singapore. She was able to get a tourist visa in March 2009. She stayed for two months in the US with family members, including a US citizen brother. While Hannah was in the US, her brother filed a petition for her.

In compliance with the instructions on Items 45 to 62 of the form, the brother truthfully declared that Hannah was in the US, inputted the I-94 and passport number, date of authorized stay but failed to indicate the consular post or embassy abroad.

The USCIS staff who processed the petition, aware that the applicant was from the Philippines, indicated the Philippines as the country where Hannah will apply for her visa. Hannah’s petition was forwarded to the National Visa Center.

After 16 years, Hannan receives a notice that her petition has been approved. The notice of approval also instructed her to submit Form I-824 because the USCIS has information that Hannah has left the US and would apply for her immigrant visa at the US Embassy in Manila.

However, Hannah had returned to Singapore and her contract of employment was up to Sept. 30, 2022.

Hannah may start her visa application because her priority date is on or earlier than the F4 cut-off date for Filipino applicants. She also has received a letter from the National Visa Center showing her case number starting with MNL indicating she would have to apply for her immigrant visa in the Philippines. Not Singapore.

Her immediate concern is the Covid-19 situation in the Philippines, Singapore and the United States. Should she start and complete her visa application confirming that she will apply for her immigrant visa in Manila, does she resign from her employment and face possible penalties or sanction from her employer, or should she request for a change of consular processing from Manila to Singapore?

Since Hannah has received confirmation that she would have to apply for her immigrant visa at the US Embassy in Manila, it is better if she proceeds with completing her immigrant visa application with NVC and waits for her interview date.

Upon receipt of her interview date, she may then register for a medical exam at St. Luke’s online. She may then request for a temporary leave of absence from her Singapore employer to take the medical exam and stay until her interview appointment.

St. Luke’s directly transmits medical results to the US Embassy — assuming no additional procedures (such as sputum test) are required.

Then she may stay in the Philippines until after her consular interview. Hopefully, she passes and is asked to pay the visa delivery fee. It normally takes 7 to 12 days for the immigrant visa to be delivered.

If the quarantine protocols in the Philippines change and Hannah either does not get to have a complete medical exam, or the medical exam had been completed but the Covid-19 situation in the Philippines results in the temporary cancellation of visa operations in the Philippines, then Hannah would have to decide whether to return to Singapore or wait until the embassy resumes visa processing.

With 453,000 immigrant visa applicants waiting for immigrant visa interviews at consular posts, it is safe to assume that Hannah may not be scheduled for an interview until next year.

Her contract of employment expires in September 2022. Hannah may best return to Singapore (if St. Luke’s closes due to Covid-19) and reschedule her medical exam after getting a new interview date from the US Embassy.

However, if she gets the medical exam but the US Embassy temporarily cancels visa operations, she may contact her employer in Singapore about the travel restrictions and request to extend her authorized absence from work.

If she decides to resume work in Singapore, she may still pursue her immigrant visa at the US Embassy in Manila citing the “circumstances beyond her control,” i.e. Covid-19 and the resultant cancellation of medical exam and interview appointments.

At worst, she may have to pay for the visa fee, medical exam, NBI and other clearances again. But she would retain her priority date and get her green card after she successfully passes the rescheduled consular interview.

Requesting a change of consular post processing is a complex, tenuous and risky alternative.

Opinion

en-ph

2021-05-10T07:00:00.0000000Z

2021-05-10T07:00:00.0000000Z

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