United States citizens and permanent residents can file immigrant visa petitions for their spouses to move to the United States to reside with them on a permanent basis. Generally, the first step of this process is to file a petition with the United States Citizenship & Immigration Service (USCIS), also known as the I-130 petition. However, this can often be an extremely lengthy process.
Current wait times for such a petition to be approved will range from 10 months to 27 months depending on where the US Citizen or Lawful Permanent Resident petitioner lives and which USCIS office must be used to file the petition. This does not include the time it will take for an applicant to be granted a US immigrant visa after the I-130 petition is approved.
A lesser-known, and highly efficient alternative to filing a traditional I-130 petition with USCIS exists, which allows certain applicants to file the I-130 petition directly with a US consulate abroad in the case of “exceptional circumstances”. This is also known as a direct consular filing or EC filing. Certain qualifying US Citizen petitioners residing outside of the United States can file an I-130 directly with the relevant US consulate. This option is reserved for US citizens and is not available to foreign nationals holding permanent residence in the United States.
There is no absolute right to utilize this method of filing, as petitioners must obtain permission from the consulate to file directly. If the consulate believes there are exceptional circumstances, then they will permit a direct filing, which generally takes 4 to 6 months, a sharp decrease on the 1 to 2-year wait if filed with USCIS domestically.
When can US consulates accept direct filings of immigrant petitions?
USCIS issued a Policy Memorandum (PM-602-0043.1) entitled “Process for Responding to Requests by the Department of State to Accept a Locally Filed Form I-130 – Petition for Alien Relative”, which sets forth the guidelines under which Exceptional Circumstances I-130’s can be filed.
The term “exceptional circumstances” is interpreted by US consular officers and can include any situation which a consular officer deems worthy of immediate processing. Some examples enumerated by the DOS outlining typical qualifying exceptional circumstances include:
- Military emergencies;
- Medical emergencies;
- Threats to personal safety;
- Close to aging out: A beneficiary is within a few months of aging out of eligibility;
- Petitioner has recently naturalized;
- Adoption of a child; and
- Short notice of position relocation.
In practice, the last-mentioned category is most common. For example, a US citizen residing and working in Zurich, Switzerland is informed that they will be transferred to their employer’s New York office in 4 months. Such a person would be eligible to request permission at the US consulate in Bern to file an exceptional circumstances request for their spouse given the short timeline within which they will be transferred. They would also be able to apply for other qualifying immediate relatives simultaneously so that the entire family could relocate on time.
As noted above, consular officers have a wide degree of discretion on whether to accept a direct filing. As such, it is crucial to emphasize and distinguish a particular situation warranting a direct filing by highlighting the consequences to the petitioner, or the United States itself, should the consulate refuse to accept the case. Filings must generally be urgent and in need of expedited processing to avoid unfortunate consequences to petitioners and their family members.
Furthermore, the Department of State (DOS) which oversees US consular operations is permitted to consider the residence of a petitioner when determining whether or not to accept a filing. In practice, most consulates will require proof of residence in the country in which the consulate is located before they will accept jurisdiction over a direct filing.
Who qualifies as an eligible petitioner?
While US permanent residents and US citizens are both generally permitted to sponsor their family members for permanent residence in the US, US permanent residents are limited to filing with USCIS and cannot file directly with the consulate under the exceptional circumstances I-130 process. As such, only US citizens will qualify as petitioners for a direct filing with US consulates abroad and US permanent residents will not thus qualify. Furthermore, only immediate relatives of US citizens are eligible as beneficiaries of direct consular filings. An immediate relative includes a spouse of a US citizen, unmarried children below the age of 21 of US citizens or parents of US citizens if the US citizen is over the age of 21.
Importantly, consulates are prohibited from accepting direct filings from petitioners who have already filed a petition with USCIS which is still pending. This is likely to prevent duplicating efforts and the wasting of government resources while also preventing potentially inconsistent adjudications. As such, petitioners should carefully consider their strategy prior to submitting an I-130 with USCIS.
Residence of the US petitioner is often an important factor when considering whether to accept jurisdiction of a direct filing. Consulates usually request proof that a petitioner holds citizenship of or resides in the country in which the consulate is located before they will accept jurisdiction over a case. Proof of residence usually includes residence cards, a long-term visa or work permit, or a passport from the country of application, however, each consulate will have their own special requirements.
After a case is accepted
If the US consulate considers the facts outlined in the request as truly exceptional and warranting expedited processing, it will inform the petitioner that the I-130 may be filed directly with the consulate. The consulate will outline the next steps in a succinct email and will request specific documents to be provided.
Some consulates will require in-person interviews with both the petitioner and the beneficiary and some only require interviews with the beneficiary. Some do not require an initial interview at all. For example, the US consulate in Frankfurt requires, as a first step, that the petitioner’s documents be mailed directly to the consulate rather than having an interview with the petitioner. Other consulates, such as those in Bern and Amsterdam, will require initial in-person interviews with the petitioner and subsequent interviews with the sponsored family members.
The US Citizen petitioners will need to establish that they have a qualifying relationship with the beneficiary and that they are financially capable of supporting the beneficiary. This is usually done by completing Form I-864 and including supporting financial documents demonstrating that the petitioner’s income exceeds the income thresholds outlined by USCIS. Household size is a major factor in determining a petitioner’s ability to support their immediate relative(s).
Consulates will arrange a time to interview the beneficiary to ensure that they meet the requirements to obtain an immigrant visa. Beneficiaries of immigrant visas will need to demonstrate a bona fide immediate relation to their US citizen petitioner. They will also need to demonstrate that they are not barred from obtaining a US visa under US immigration law. For example, a beneficiary will need to undergo a medical examination by a USCIS-authorized medical examiner to demonstrate that they have received mandatory vaccinations and are not likely to become a ward of the state or a danger to US society.
If approved, the US consulate will notify the petitioner and issue the visa with a validity date set to expire on the date of the medical examination. Processing times for direct I-130 filings are significantly shorter than traditional USCIS filings. In most cases, processing a direct filing takes between 3 to 6 months, depending on the consulate and the swiftness of the petitioner’s document gathering process. However, a direct filing can take as little as one month to be approved.
Advantages and disadvantages of filing an immigrant petition with the US consulate
A major advantage of filing an I-130 immigrant petition directly with a US consulate rather than with USCIS is the processing speed. As mentioned, the direct filing process is designed to accommodate exceptional circumstances which require expedited approval. Therefore, processing timelines are enormously reduced in comparison to traditional USCIS filings, which regularly exceed one year.
Some categories under which US citizens can file directly with the US consulate can indirectly support other substantive requirements of the petition. For example, US citizens who are being transferred to the US for work will usually provide job offers or work contracts as supporting evidence. This has the potential to ease a consular officer’s concerns about financial support obligations later on in the process. However, this is by no means guaranteed to influence the case.
However, the process does not come without its downsides. Most obvious are the limited circumstances in which the process can be utilized. Many petitioners may themselves consider their reason for requesting a direct filing as a true emergency. However, it is sometimes the case that consulates do not share the same view and requests for direct filings are discretionary. This can mean that the decision to request a direct filing can result in lost time which could have been saved by first filing with USCIS. Furthermore, a refusal to accept a case cannot be appealed as a consular officer’s discretion is extremely wide in accepting or refusing direct I-130 filings. Obtaining legal assistance can be invaluable as experienced attorneys are often able to provide informed opinions on whether a case will be accepted or not.
Entering the USA
If the immigrant visa is approved by the consulate, the US consulate will inform the applicant and deliver a sealed document packet which is commonly referred to as a “visa packet.” The visa holder will need to pay a USCIS immigrant fee prior to travelling to the US. After entering the USA, a green card will be automatically processed by USCIS with the funds received from the aforementioned USCIS immigrant fee. Visa holders will travel to the US and hand the packet over to the Customs and Border Patrol officer responsible for admitting them to the United States. In most cases, the permanent residence card, or green card, will be automatically processed and shipped directly to the newly settled immigrant.
Summary
Having a qualifying immediate relation to a US citizen residing abroad might allow potential beneficiaries a fast-track route to a green card. The alternative, traditional method of filing directly with the United States Citizenship and Immigration Service could take 1 to 2 years. However, the circumstances in which a US Citizen is able to submit a direct consular filing are limited in scope as they come with many prerequisites.
Editor’s note:
If you are a US Citizen who intends to relocate back to the US with your family members, the US attorneys in Fragomen’s Frankfurt office are able to offer a personalized strategy to ensure that your family’s green card application runs smoothly.