National Visa Center / AILA DOS Liaison Committee Meeting on November 3, 2016 in Portsmouth, NH

​SUBMITTED QUESTIONS & ANSWERS can be viewed here or posted below.

1. Policy Clearances.

Some countries will only send police clearances directly to the Embassy/ Consulate (e.g. Hong Kong). How NVC is notified that when Embassy/ Consulate has received the required police clearances so that an appointment can be scheduled? How are attorneys/applicants notified? RESPONSE: 9 FAM 504.4-4(A) outlines the basic document requirements for the immigrant visa process. The Visa Reciprocity Schedule provides further clarification as to availability of documents in a particular country. NVC uses the Reciprocity Schedule during the collection process to determine whether or not an applicant needs to submit the police certificate to NVC for review. If the Reciprocity Schedule indicates the local police authority sends the document directly to the Consular Section, NVC will not request a copy of the document from the applicant and will set an appointment when the case is otherwise documentarily complete. The attorney/applicant should ensure the police certificate is sent to the Consular Section prior to the interview. The Consular Officer overseas will determine the acceptability of the document at the time of adjudication. Please check travel.state.gov, post supplements and post websites for additional guidance.

2. Document Checklists.

Attorneys report that they continue to receive checklists from NVC asking for documents that have already been submitted. Should attorneys resend the same documents to NVC? Or should they send an email to [email protected] to request clarification? RESPONSE: When NVC sends a checklist letter for a document already submitted, please respond to NVC’s concerns by providing a written explanation to the [email protected] mailbox. NVC will re-review the case file in an attempt to locate the document and update the case record accordingly. If attorneys or applicants receive a checklist letter after an appointment has been made and the case has gone to post, applicants should make sure to bring copies of the items requested in the latest or final checklist letter.

3. Civil Documents.

Please confirm NVC’s requirements regarding translation of civil documents. For example, are translations required where the document is to be sent to a post where consular officers speak the language in which the documents are written? Where can applicants find information as to which documents require translations? RESPONSE: All documents not written in English or the official language of the country in which you are applying for a visa must be accompanied by certified translations. The translation must include a statement signed by the translator stating that the: Page 2  Translation is accurate and  The translator is competent to translate. Some embassies or consulates may have additional requirements. Applicants should always follow the documentary instructions on the embassy or consulate’s interview instructions on travel.state.gov.

4. CSPA.

It appears that NVC generally does not issue fee bills to dependent children who have turned 21, as they are not able to determine whether the child can benefit under CSPA when the priority date is not current. Often, these children will not age out until 1-2 years in the future; however, if the attorney waits until the priority date is current to request the child’s fee bill, valuable time is lost from the time the fee bill is requested to the time it is actually issued and paid. As such, would NVC consider issuing fee bills for such dependent children when the fee bills are issued for the rest of the family? Allowing the child’s immigrant visa (IV) fee to be paid before the CSPA age is determined by the consular officer at the IV interview would enable the dependent child to “seek to acquire” and potentially lock in their CSPA age, prevent delays for the rest of the family’s IV interviews, ensure that the child is able to immigrate with the rest of the family, and prevent NVC from receiving an influx of fee bill requests when priority dates advance. AILA understands that there may be some cases where the fee bill is paid but the child ages out before the priority date becomes current but notes that most in this situation would opt to pay the fee bill to lock in the CSPA age despite this risk. AILA has raised this with NVC in the past but has not received a final answer from the NVC or Visa Office; as such, please confirm whether DOS has made a decision on whether to issue fee bills to such dependents and allow them to potentially lock in their CSPA age when their parent is current under the Filing Date chart. RESPONSE: The Visa Office and NVC are currently examining CSPA guidelines, including the question of whether or not NVC would be able to issue an IV fee bill in these circumstances.

5. Duplicate Notices.

AILA has received reports from members regarding approved I-730 cases where the attorney and applicant are getting identical approval/transfer notices from NVC at least every other, and sometimes twice a day. Is NVC aware of this issue and if so, is there a reason for the duplicate notices? RESPONSE: Yes, the public made us aware of this issue and we were able to quickly address the underlying technical issue. We appreciate AILA’s regular feedback on these types of issues. Individual attorneys experiencing potential computer errors can use the attorney email, [email protected], to provide feedback. For online issues with CEAC or CTRAC, we recommend providing screenshots of any error messages or incongruities. Page 3

6. Transfer Issues – Tajikistan and Kyrgyzstan. AILA members representing nationals of Tajikistan are receiving notices explaining that their cases have been transferred to Bishkek, Kyrgyzstan with new case numbers reflecting the change. However, the Bishkek Embassy’s website indicates that they do not process immigrant visas. Additionally, the Dushanbe Embassy’s website still states that all immigrant visas are processed via Almaty, Kazakhstan. Has there been a change in processing for Tajik cases? Will all Tajik cases be processed through Bishkek or will processing in Almaty continue for some cases? RESPONSE: The U.S. Embassy in Bishkek will begin accepting IV cases from NVC in November 2016. With this launch in mind, NVC is beginning to assign Kyrgyz applicants to process in Bishkek, instead of Almaty. Bishkek’s website is currently under construction to add IV processing information, and interview instructions for Bishkek will soon be available on travel.state.gov. Tajikistani applicants, however, will continue to process in Almaty, Kazakhstan. If you’ve received notification indicating that a Tajikistani’s case was transferred to Bishkek, we’d appreciate receiving case specific information via [email protected] so we can investigate further.

7. Affidavit of Support. An affidavit of support sponsor is permitted to supplement their income with proof of assets to make up any shortfall of income to meet the affidavit of support requirements. Despite providing proof of value, equity, and ownership of assets, NVC seems to regularly deem the affidavit of support inadequate. Does this information need to be provided to NVC, or can it instead be brought to the interview? RESPONSE: NVC will assess affidavits of support based on the income information provided by the petitioner. As a matter of procedure, NVC staff will not consider proof of assets that were submitted to supplement petitioner income. In any situation where the petitioner’s income does not overcome poverty guidelines, NVC will send an assessment letter suggesting that the applicant bring a joint-sponsor document or other proof of income/assets to the IV appointment. It is important to note that this NVC-generated assessment letter will not hold up the qualification of the case for appointment at post. As mentioned in the assessment letter, applicants should bring any completed joint-sponsor documents, as well as proof of petitioner assets to the immigrant visa interview, where the consular officer will make the final determination regarding the affidavit of support and whether the supporting income and asset documents overcome poverty guidelines.

8. Modernized Immigrant Visa (MIV) Process

a. We understand that the Consular Electronic Application Center (CEAC) has been undergoing significant program developments. Please provide an update on the implementation of the Modernized Immigrant Visa (MIV) application process at the initial six pilot posts. RESPONSE: The Bureau of Consular Affairs is planning a spring 2017 release of a new CEAC module for IV applicants on a pilot basis. This module will feature:  Online submission of financial and civil documents;  The ability to add or remove derivative applicants online;  The ability to change derivatives from accompanying to follow-to-join online; Page 4  NVC feedback and status updates provided electronically; and  Online case follow-ups to avoid entering termination status – you no longer need to call or email us once per year, you can simply log into CEAC to prevent your case from entering termination. We will pilot this new module with six embassies and consulates (Montreal, Rio de Janeiro, Buenos Aires, Frankfurt, Sydney, and Hong Kong). b. We also understand that the second phase of the MIV was scheduled to take place in mid- 2016 at six additional posts with lower Internet penetration and where applicants have greater reliance on third-party assistance in order to evaluate the robustness of the CEAC system and its ability to respond to a variety of situations. Please provide an update on the results, to date, of this second phase. RESPONSE: In September 2016, we added eight posts to our electronic processing pilot: Addis Ababa, Baghdad, Guatemala City, Kiev, Monrovia, Phnom Penh, Tegucigalpa, and Tashkent. Applicants processing at these embassies now have the option to e-mail their documents to the [email protected] mailbox rather than mailing hard copies to NVC. We scheduled interviews for the first round of electronic cases at these posts in November. If you have clients from one of these posts, please encourage them to join email processing. Customer tip: Applicants who submit documents via email should not also mail them; that can delay case review. c. What is the current target date for worldwide deployment of MIV processing? RESPONSE: It is too early to give a definitive date for worldwide deployment at this time. We hope to be able to answer this question after our planned pilot in spring 2017.

9. NVC Operations

a. We understand that the NVC is transitioning from a paper warehouse to a customer service center and as part of this process; teams of regional experts have been created to identify and respond to obstacles confronting visa applicants. Please provide an update on the activities of regional teams. Are there any plans to extend this model to the non-immigrant visa application process? RESPONSE: NVC Post Liaisons act as the intermediary between consular sections worldwide and NVC’s regional processing teams. They communicate trends, guidance, interview capacity, and other processing updates between the regional teams and the posts served. Post Liaisons have a thorough understanding of IV processing at posts overseas. They also work with posts to ensure public information is up-to-date and understandable. We are always looking at the service we provide and considering ways to improve customer service. Thank you for the suggestion. b. We understand that NVC added a consular officer to its staff in the fall of 2015 in order to facilitate the relationship between NVC and overseas posts. Has this addition yielded the expected results? RESPONSE: NVC added a consular officer position to its staff in the fall of 2015 to Page 5 serve as the Government Technical Monitor (GTM) of its Case Processing and Document Review units. In addition to providing oversight and IV expertise from the field, the consular officer oversees the new Post Liaison program, described above. c. What is the role of the subject matter expert assigned to the customer service division? RESPONSE: NVC added a consular officer position to its staff in summer 2015 to serve as Government Technical Monitor (GTM) of its Telephone Inquiry and Written Correspondence units. In addition to providing oversight and IV expertise from the field, the consular officer oversees the Special Immigrant Visa (SIV) program and monitors compliance with Personally Identifiable Information (PII) regulations and Freedom of Information Act (FOIA) requests. d. Please confirm the current timeframe for the following: i. How long it takes to receive a file from USCIS after approval of an immigrant petition; RESPONSE: It can take up to six weeks to receive a case from USCIS. ii. How long it takes to enter data in the NVC system once a file is received from USCIS; RESPONSE: As of October 28, 2016, it takes seven business days. iii. How long an applicant should wait after approval of a petition by USCIS before inquiring about the status of the application with the NVC; and RESPONSE: We recommend waiting up to six weeks after receiving notice of petition approval before inquiring with NVC. iv. How long it takes for an applicant or attorney to receive a response from [email protected]; or [email protected]. RESPONSE: As of October 28, 2016, it takes five business days to respond to emails submitted to the [email protected] mailbox and five business days to respond to inquiries sent to the [email protected] mailbox. Please keep in mind that processing timeframes and inquiry response times change weekly based on the quantity of questions and casework received at NVC.

10. Inquiring on Pending Cases

a. At our last meeting, NVC provided the following process for attorneys to inquire about cases pending with NVC. When inquiring about a case, send an e-mail to [email protected]. If you do not receive a response within 15 days, send a second follow-up e-mail to [email protected]. If you still don’t receive a response after 15 days, send a third e-mail to [email protected], with “Attention PI Supervisor” in the subject line. You should receive a response from the PI Supervisor within 5 to 7 business days. Page 6 Are there any changes to this escalation protocol? RESPONSE: Given that we are now responding to attorney e-mails well within one week, we have revised the guidance as follows: When inquiring about a case, send an e-mail to [email protected]. If you do not receive a response within eight days, send a second follow-up e-mail to [email protected]. If you still don’t receive a response after eight days, send a third e-mail to [email protected] with “Attention PI Supervisor” in the subject line. You should receive a response from the PI Supervisor within five to seven business days. b. We understand that NVC receives telephone inquiries regarding processes and procedures relating to the nonimmigrant visa application process. This role is confined to providing general application information, directing applicants to the appropriate consulate web page, identifying the status of an application at a post, and informing applicants of a visa refusal. Are there any plans to expand the role of NVC in the nonimmigrant visa application process? RESPONSE: There are no plans to expand our role at this time.

11. DS-260. Are any planned updates for Form DS-260?

RESPONSE: There are no planned updates for the Form DS-260 at this time.

12. Attorney as Agent.

If an attorney is designated as an agent, is it also necessary to have a Form G-28 on file in order to be able to communicate with NVC on behalf of the visa applicant? RESPONSE: As an attorney, you can either file a Form G-28 or submit a signed statement on your law office letterhead that indicates you are now representing the beneficiary. We accept both of these items as proof that there is an attorney-client relationship, and either can be submitted to [email protected].

13. Revoked I-130s

After Death of USC Spouse Petitioner. AILA has recently received reports of certain I-130 petitions being revoked erroneously after the death of a United States Citizen (USC) petitioner (examples available upon request). Pursuant to 8 CFR 204.2(i)(1)(iv), a visa petition previously approved to classify the beneficiary as an immediate relative spouse of a USC should automatically convert to an approved Form I-360, Petition for Amerasian, Widow(er) or Special Immigrant. Examples are submitted for your review at Appendix A. As a result, I-130 petitions that fall into this category should not be revoked. Although these cases are being revoked by USCIS, they are being sent for revocation to USCIS by the NVC. Is the NVC aware of this issue? If a case is erroneously sent for revocation and an attorney/beneficiary receives notice of such a transfer and/or revocation, what is the process to resolve this error and ensure that the case is properly converted to an I-360 as noted in 9 FAM 502.1-2(C)(c.)(2)? RESPONSE: Thank you for your feedback. You are correct that many IR1/CR1 (and in some circumstances IR2/CR2) cases are eligible for automatic conversion to I-360. Page 7 NVC has an existing procedure in place that converts these petitions upon notification of the death of the petitioner. Thank you for providing examples of cases where AILA believes a petition should have been automatically converted. We note that 8 CFR 204.2 (i)(1)(iv) and 8 CFR 204.2(b)(1) set requirements for automatic conversion. Depending on the facts of the case, if there is a question about whether these requirements were met, the appropriate course of action may be to send a petition to USCIS for review and possible revocation. It is especially difficult for us to determine that a petition was returned to USCIS in error where USCIS in fact revoked the petition. We understand from previous discussions that AILA also intended to raise this issue with USCIS. We look forward to learning USCIS’ response and with this clarity will work to ensure interagency consistency. With respect to the specific examples, we will work with the Visa Office and respond directly to the inquiring attorney. If you encounter similar cases, please send an email with case specifics to [email protected] with “Attention PI Supervisor” in the subject line and we will review the issue for you. 

Please see here or here.

DOS Department of State New Policy: "No Eyeglasses Policy for Visa and Passport Photographs." As of November 1, 2016 photographs of visa and passport applicants wearing eyeglasses will no longer be accepted, except in rare, medically-documented circumstances.

CA will implement this policy with a soft one-month enforcement period from November 1 to November 30, 2016, after which we will not accept photographs with eyeglasses.

Make sure you are not wearing eyeglasses in your visa and passport photos.

------------------Briefly in Russian:
Госдепартамент США изменил правила подачи фото для виз и паспорта. Начиная с 1 ноября 2016 визовые и паспортные фото в очках не принимаются. Заявитель обязан предоставить паспортное или визовое фото без очков. В период с 1 по 30 ноября 2016 возможны поблажки. Также возможно исключение в особых случаях, при наличии справки от врача.
---------------------------
The Department published 9 FAM 303.6-2(A)(1) "Photo Standards" on September 20,
2016, Change Transmittal (CT)-VISA-178. CA revised 9 FAM 303.6-2 (A)(1) paragraph
(a)(7) to prohibit the wearing of eyeglasses in visa photographs except in rare, urgent
medical circumstances. The key revisions are as follows:
--> (7) (U) Eyeglasses: Effective for applications filed on or after November 1, 2016,
eyeglasses must not be worn in a photo provided for a visa application, except in rare
circumstances when eyeglasses cannot be removed for medical reasons; e.g., the
applicant has recently had ocular surgery and the eyeglasses are necessary to protect
the applicant's eyes. A medical statement signed by a medical professional/health
practitioner must be provided in these cases. If the eyeglasses are accepted for
medical reasons:
(a) (U) The frames of the eyeglasses must not cover the eye(s) (ICAO 9303,
Section IV, Appendix 11, 1.8).
(b) (U) There must not be glare on eyeglasses that obscures the eye(s).
(c) (U) There must not be shadows or refraction from the eyeglasses that
obscures the eye(s).
https://travel.state.gov/content/dam/visas/policy_updates/16-STATE-106142.pdf

9 FAM 502.7-5  K VISAS – SPOUSE OR FIANCÉ (E) OF U.S. CITIZEN (AND THEIR CHILDREN)
9 FAM 502.7-5(A)  Related Statutory and Regulatory Authorities
9 FAM 502.7-5(A)(1)  Immigration and Nationality Act
(CT:VISA-1;   11-18-2015)
INA 101(a)(15)(K) (8 U.S.C. 1101(a)(15)(K)); INA 101(b)(1) (8 U.S.C. 1101(b)(1)); INA 203(a) (8 U.S.C. 1153(a)); INA 204(a)(1) (8 U.S.C. 1154(a)(1)).
9 FAM 502.7-5(A)(2)  Code of Federal Regulations
(CT:VISA-1;   11-18-2015)
(Previous location:  9 FAM 41.81 Regulatory Provisions; CT:VISA-1813;   03-05-2012)
22 CFR 41.81; 8 CFR 214.2(k).
9 FAM 502.7-5(A)(3)  Public Laws
(CT:VISA-163;   08-25-2016)
Legal Immigration Family Equality Act (LIFE Act), Public Law 106-553; District of Columbia Appropriations Act, 1999, Public Law 106-113, sec. 237; International Marriage Broker Regulation Act of 2005 (IMBRA), Public Law 109-162, sec.831-834; Adam Walsh Child Protection and Safety Act of 2006 ("Adam Walsh Act"), Public Law 109-248, sec. 402.
9 FAM 502.7-5(A)(4)  United States Code
(CT:VISA-1;   11-18-2015)
18 U.S.C. 1801.
9 FAM 502.7-5(B)  Overview of K Visa Classifications
(CT:VISA-163;   08-25-2016)
a. The fiancé(e) K-1 nonimmigrant visa is for the foreign-citizen fiancé(e) of a U.S. citizen.  The K-1 visa permits the foreign-citizen fiancé(e) to travel to the United States and marry his or her U.S. citizen sponsor within 90 days of arrival.  Eligible children of K-1 visa applicants receive K-2 visas.
b. The K-3 nonimmigrant visa is for the foreign-citizen spouse of a U.S. citizen. This visa category is intended to shorten the time the foreign-citizen and U.S. citizen spouses must be separated by providing the option to obtain a nonimmigrant visa overseas and enter the United States to await approval of the immigrant visa petition.  Eligible children of K-3 visa applicants receive K-4 visas.
c.  Classification under INA 101(a)(15)(K):
(1)  Classification under INA 101(a)(15)(K)(i) (Fiancé(e) of U.S. Citizen – K-1): 
(a) Fiancé(e):  An alien may be classified as a K-1 if he or she is the beneficiary of an approved Form I-129F, Petition for Alien Fiancé́(e), for issuance of a nonimmigrant visa.  If you are satisfied that the alien is qualified to receive such a visa, the alien may be admitted to the United States for the purpose of concluding a marriage to the petitioner within a 90-day period.
(b)  Alternative Classification:  The inclusion of INA 101(a)(15)(K) in the nonimmigrant classifications is not intended to prohibit an alien fiancé́(e) of a U.S. citizen from applying for and obtaining an immigrant visa or a nonimmigrant visa under another classification, if the alien can qualify for an alternative classification.  For example, an alien proceeding to the United States to marry a U.S. citizen may be classified B-2, if it is established that following the marriage the alien will depart from the United States. (See 9 FAM 402.2-4(B)(1).)
(2)  Classification under INA 101(a)(15)(K)(ii) (Spouse of U.S. Citizen – K-3):  Public Law 106-553 established a new category of nonimmigrant visa for the spouses of U.S. citizens who await approval of a Form I-130, Petition for Alien Relative, to enter the United States as nonimmigrants. The symbol for the beneficiaries of this category is K-3.
(3)  Classification under INA 101(a)(15)(K)(iii) (Child of K-1 – K-2, and Child of K-3 – K-4):
(a)  This provision is for the children of either a K-1 or a K-3. An accompanying or following-to-join child (as defined in INA 101(b)(1)) of a K-1 is entitled to K-2 derivative status.  The child of a K-3 who is accompanying or following-to-join a K-3 principal alien is entitled to K-4 derivative status.
(b)  Time Limit for Child of K-1 Fiancé(e):  USCIS and the Department have agreed that the child of a K-1 principal alien may be accorded K-2 status if following to join the principal alien in the United States even after the principal alien has married the U.S. citizen fiancé́(e), and acquired Lawful Permanent Resident (LPR) status.  However, the cutoff date for issuance of a K-2 visa is one year from the date of the issuance of the K-1 visa to the principal alien.  After one year, and provided that the alien qualifies, the filing of an immediate relative or second preference petition would be required.
(c)  Time Limit for Child of K-3:  USCIS and the Department have agreed that the child of a K-3 principal alien may be accorded K-4 status if following to join the principal alien in the United States even after the principal alien has acquired LPR status.  However, the cutoff date for issuance of a K-4 visa is one year from the date of the issuance of the K-3 visa to the principal alien.  After one year, and provided that the alien qualifies, the filing of an immediate relative or second preference petition would be required.
d. K Visa Petitions:
(1)  Filing Form I-129F, Petition for Alien Fiancé(e) (K1): 
(a)  Fiancé(e) Petition:  Form I-129F, Petition for Alien Fiancé(e), may not be filed with, or approved or denied by, a consular officer or an immigration officer stationed abroad.  All K visa petitions must be filed with USCIS district office having jurisdiction over the petitioner’s current or intended residence in the United States.  If the citizen fiancé́(e) is abroad at the time the K visa petition is filed, you should advise the petitioner to send the completed petition, supporting documents, and appropriate fee to the DHS USCIS service center with jurisdiction over his or her state of intended residence after marriage.  The USCIS website has complete information on service center jurisdiction.  After the petition is approved, USCIS will transmit it to NVC, which will alert the appropriate post.
(b)  Validity of a K-1 Petition:  An approved K-1 visa petition is valid for a period of four months from the date of USCIS action.  However, the consular officer may revalidate the petition any number of times for additional periods of four months from the date of revalidation, provided the officer concludes that the petitioner and the beneficiary remain legally free to marry and continue to intend to marry each other within 90 days after the beneficiary's admission into the United States.  However, the longer the period of time since the filing of the petition, the greater the concern about the intentions of the couple, particularly the intentions of the petitioner in the United States.  If the officer is not convinced that the U.S. citizen petitioner continues to intend to marry the beneficiary, including instances where no action has been taken on the application for a year (while refused under INA 221(g)), the petition should be returned to the approving office of USCIS with an explanatory memorandum.  (See 9 FAM 502.7-5(B) paragraph b.(5) for revalidation procedure.)
(2)  Petition for Classification under INA 101(a)(15)(K)(ii) (K3): 
(a) An alien seeking admission under INA 101(a)(15)(K)(ii) must be the beneficiary of a K-3 petition filed by a U.S. citizen in the United States. USCIS is using the usual Form I-129F, Petition for Alien Fiancé́(e), for this purpose.  As noted in 9 FAM 502.7-5(C)(1) paragraph a, if the couple married outside the United States, the visa must be issued by a consular officer in the foreign state in which the marriage was effected.
(b)  In order to file an I-129F petition for a K-3 visa, the petitioner must first file an I-130 Petition for an Alien Relative with USCIS. USCIS will send the petitioner an I-797 receipt confirming that the I-130 petition has been received.  Only then can the petitioner proceed to file the I-129F petition for the K-3.  When an I-130 and an I-129F for the same petitioner and beneficiary are filed with the same USCIS service center, USCIS will only proceed with the adjudication of the I-130 petition.
(3)  No Petition for Child of K-1 or K-3:  The unmarried child of a K-1 or K-3 applicant does not require a petition.  The applicant needs only to demonstrate that he or she is the “child” (as defined in INA 101(b)(1)) of an alien classified K-1 or K-3.  K-2 or K-4 applicants are required to sign a form apprising them that entering into a marriage prior to obtaining adjustment of status will render them ineligible for adjustment  in the IR-2 or CR-2 category.
(4)  Termination of K Visa Petition Approval:  USCIS regulations (8 CFR 214.2(k)) provide that the death of a petitioner or written withdrawal of the petition prior to the arrival of the beneficiary in the United States automatically terminates the approval of the petition.  You should return the petition to the approving USCIS office with an appropriate memorandum via the NVC.
(5)  Revalidation of Fiancé(e) Petition:  When a K visa petition is revalidated as described in 9 FAM 502.7-5(B) paragraph d(1)(B), the notation “Revalidated to (date)” should be placed in the “Remarks” block of the petition over the signature and title of the consular officer.  The date when the revalidation was processed should also be shown.
 
9 FAM 502.7-5(C)  K Visa Processing
https://fam.state.gov/FAM/09FAM/09FAM050207.html
9 FAM 502.7-5(C)(1)  Acceptance of K Visa Applications
(CT:VISA-1;   11-18-2015)
(Previous location:  9 FAM 41.81 N3; TL:VISA-756 07-27-2005)
a. K-1 and K-2 visas must be processed and issued only at immigrant visa issuing posts.  If a nonimmigrant visa issuing post receives a K-1 visa petition, it should forward the petition to the IV issuing post which covers the consular district, unless the post has been specifically authorized to process K visas.
b. Subject to paragraph c below, applicants for K-3 or K-4 visas should also be processed at IV posts, as K-1s are, but in some cases they may have to be processed at a consular post that normally issues only NIVs because there is no IV post in the country.
c.  The statute requires that a K-3 visa for an applicant who married a U.S. citizen outside the United States be issued a visa by a consular officer in the foreign state in which the marriage was concluded.  However, if no visa-issuing post is located in that country, the K-3 applicant should apply at the consular post designated to handle “homeless” IV cases for that country.  A K-4 visa applicant may be issued a visa at any IV issuing post, or, in the circumstances noted above, at a nonimmigrant post if there is no IV issuing post in the country.
9 FAM 502.7-5(C)(2)  K Visa Pre-Interview Processing
(CT:VISA-163;   08-25-2016)
a. Timely Visa Processing: 
(1)  The interview with the consular officer is the most significant part of the visa issuing process.  It is particularly important from the point of view of full and correct application of the law.  Section 237 of Public Law 106-113 requires that the Department establish a policy under which fiancé́(e) visas be processed within 30 days of receipt of the necessary information from the applicant and the Department of Homeland Security.  The Department expects all posts to strive to meet the 30/60 day requirements.
(2)  Since the underlying purpose of the Legal Immigration Family Equity (LIFE) Act is to reunite families, it is important that posts process these cases as quickly as possible.  Posts should first process immigrant visas cases that are current for processing and for which visa numbers are available.  The second priority should be V-1 and K-3 applicants and their children.
b. Action When K-1 Petition Received:  Upon the receipt of an approved I-129F petition for a K-1 applicant, the post should send a letter to the beneficiary outlining the steps to be taken to apply for a visa.  If the initial four-month validity of a petition has expired without a response to the post’s letter, you should send a follow-up letter to the beneficiary, with a copy to the petitioner, and request a reply within 60 days.  If the 60-day period passes without a response from either party, or, if the response indicates that the couple no longer plans marriage, the case is to be considered abandoned; the petition is to be retained at the post for a period of one year and then destroyed.
c.  Action When K-3 Petition Received: Upon receipt of an approved I-129F petition for a K-3 applicant, consular staff should check the Person Centric Query Service (PCQS) to determine if the associated I-130 petition has already been approved.  If the I-130 has been approved, the I-129F for the K-3 visa application should be refused under section 5A, and the I-129F should be kept in the file with the corresponding I-130 petition when it is received by post.  The petitioner and beneficiary should be advised that post will notify them when the approved I-130 petition is received at post.  If the I-130 petition has not yet been approved, then the I-129F is still valid and post may continue processing the K-3 visa application.
d. Applicant Informed of Requirement for Visa:   Upon the receipt of a K visa petition approved by U.S. Citizenship and Immigration Services, post should promptly send to the applicant:
(1)  Instructions for accessing Form DS-160, Online Nonimmigrant Visa Application;
(2)  One copy of the petitioner's approved Form I-129F, together with any criminal background information (including information on protection orders) that USCIS has gathered on the petitioner and any information that USCIS has provided regarding prior Form I-129F filings by the petitioner (see 9 FAM 502.7-5(D)(1) for more specifics);
(3)  One copy of USCIS's pamphlet (in paper or electronic form), "Information on the Legal Rights Available to Immigrant Victims of Domestic Violence in the United States and Facts about Immigrating on a Marriage-Based Visa."
9 FAM 502.7-5(C)(3)  K Visa Documentary and Clearance Requirements
(CT:VISA-163;   08-25-2016)
a. Standard Requirements:  The following records and documents are required for presentation at the time of K visa application:
(1)  Form DS-160, Online Nonimmigrant Visa Application;
(2)  Valid passport (except for a person coming under 22 CFR 41.2 paragraphs (a), (b), (h));
(3)  Birth certificate;
(4)  Police certificates (in addition to supplying a police certificate from the present place of residence, the applicant must also present police certificates from any place or places of residence for six months or more since attaining the age of 16);
(6)  The applicant must present proof of relationship to the petitioner at the time of the interview;
(7)  Evidence of termination of any prior marriage of beneficiary (if the petition does not indicate that such evidence was previously submitted); and
(8)  Form DS-2054, Medical Examination for Immigrant and Refugee Applicant and associated worksheets DS-3025, DS-3026, andDS-3030.  Please see 302.2 for additional information on the medical examination requirements for K visa applicants.
b. Accompanying Child:  If the applicant is to be accompanied by a minor child or children, Form DS-160, Online Nonimmigrant Visa Application, is required for each child.  The accompanying child also requires a valid passport (or may be included in the parent’s passport), a birth certificate, and a medical examination.  No chest X-ray or serologic tests are required if the child is under 15 years of age.  If a child is 16 years of age or over, police certificates are required.
c.  Public Charge, Evidence of Support: 
(1)  A K visa applicant and any accompanying children must meet the public charge requirement of INA 212(a)(4) like any other visa applicant.  Evidence of support is usually requested by the consular officer.  There is, however, no absolute requirement that an affidavit of support or other public charge documentation be presented.  It is only necessary that you are able to conclude that the alien is not likely to become a public charge.  It would not be unusual, therefore, for a healthy alien of working age, applying alone, to be able to establish eligibility during the visa interview without the need for substantiating documentation.
(2)  Form I-864, Affidavit of Support Under Section 213A of the Act, cannot be required.  Applicants may submit a letter from the petitioner’s employer or evidence that they will be self-supporting.  Form I-134, Affidavit of Support, may be requested when you deem it useful.
d. Medical Exam:  As noted above, the applicant must undergo the standard immigrant visa medical examination by a panel physician, and submit appropriated documentation as required including Form DS-2054, Medical Examination for Immigrant and Refugee Applicant, and associated worksheets DS-3025, DS-3026, and DS-3030.  See 9 FAM 302.3-3(A) paragraph c for more information on medical exams and vaccination requirements for K visa applicants.
e. Clearances:  
(1)  A National Crime Information Center name check must be done by the National Visa Center for each applicant.
(2)  Upon receipt of the completed Form DS-160, you should initiate clearance procedures.  If the applicant, since attaining the age of 16, has resided for one year or more in a country other than the one of visa application, the security clearance procedures used in immigrant visa cases are to be followed.
(Previous location:  9 FAM 41.81 PN3.6 a; CT:VISA-1097 10-31-2008)
f.  Fees:  There is no additional processing fee for K visas. Applicants will pay only the standard Machine Readable Visa (MRV) fee. There are no separate reciprocity fees.
9 FAM 502.7-5(C)(4)  K Visa Interview
(CT:VISA-163;   08-25-2016)
a. The Alien is to be Invited for an Interview When:
(1)  The alien has reported that all of the necessary documents have been collected; and
(2)  The medical examination has been completed and the report is or will be available before the interview.
b. You must direct the interview to determine eligibility as if the alien were applying for an immigrant visa in the immediate relative category. You must also:
(1)  Inform the K-1 or K-3 visa applicant of any protection orders or criminal background information regarding the petitioner that U.S. Citizenship and Immigration Services has reported with an approved K petition. After informing the applicant, give the applicant time to decide whether he or she wishes to proceed with the K visa application, and, in the case of an applicant for a K-1 visa, whether he or she still intends to marry the petitioner within 90 days of entering the United States. Enter appropriate case notes into the IVO system to indicate that the applicant received notice of the petitioner's criminal background information (see 9 FAM 502.7-5(D)(1) for more specifics);
(2)  Inform the K-1 or K-3 visa applicant of any previously approved Form I-129F petitions filed by the petitioner.  You will find this information on the approved Form I-129F as USCIS annotates approved Form I-129F petitions to indicate multiple filings.  (Note: Under IMBRA, if a U.S. citizen already has had two fiancé(e) or spousal petitions approved less than ten years prior to the filing of a subsequent petition, the K-1 or K-3 applicant who is the beneficiary of the subsequent petition is to be notified.  Absent an IMBRA waiver, USCIS may not approve a petition filed by an individual who (1) has filed two or more previous fiancé(e) or spousal petitions; or (2) has had such a petition that was filed within the previous two years approved.  USCIS indicates these waivers by noting "IMBRA waiver approved" in the approved petition's Remarks block.  Aside from informing the beneficiary of the previous petitions, no additional steps are required of you.)  Make appropriate case notes in IVO;
(3)  Ask the applicant whether an international marriage broker (IMB) facilitated the relationship with the petitioner and if so, identify the IMB, and then ask if the IMB complied with the International Marriage Broker Regulation Act of 2005 (IMBRA) by providing the applicant with the required disclosures and information (see 9 FAM 502.7-5(D)(1))  If the IMB did not provide the required disclosures and information, make case notes in IVO on the failure of the IMB to comply with IMBRA and provide that information to CA/VO/F/IE by email.  Proceed with case processing; do not wait for clearance to proceed;
(4)  Provide to each K-1 or K-3 visa applicant another copy of the USCIS pamphlet, "Information on the Legal Rights Available to Immigrant Victims of Domestic Violence in the United States and Facts about Immigrating on a Marriage-Based Visa," which they already should have received when the instruction packet was first mailed to them (see 9 FAM 502.7-5(C)(2) paragraph c), in English or another appropriate language;
(5)  Orally review with the applicant, in his or her primary language, if feasible, or otherwise in either the language spoken in the country of application or English, the synopsis of the points contained in the pamphlet (found at 9 FAM 502.7-5(E)); 
(6)  Add case notes in IVO that the pamphlet was received, read, and understood by the applicant; and
(7)  In K-1 cases, obtain the applicant’s oath and biometric signature within IVO – this certifies the applicant’s legal capacity and intent to marry.
9 FAM 502.7-5(C)(5)  K-1 and K-2 Visa Adjudication
(CT:VISA-163;   08-25-2016)
a. Adjudication Factors:
(1) Petitioner and Beneficiary Must Have Met:  USCIS regulations (8 CFR 214.2(k)(2)) require that the petitioner and the K-1 beneficiary have met in person within two years immediately preceding the filing of the petition. At the USCIS director's discretion, this requirement can be waived if it is established that compliance would result in extreme hardship to the petitioner or that compliance would violate strict and long-established customs of the beneficiary's foreign culture.
(2)  Petitioner and Beneficiary Must Be Legally Free to Marry:
(a)  For a K-1 petition to remain valid, the petitioner and the beneficiary must:
(i)     Have been legally free to marry at the time the petition was filed;
(ii)    Have remained so thereafter; and
(iii)    Continue to have the intent to marry within 90 days after the beneficiary’s admission into the United States.
(b)  A K-1 petition filed when the petitioner and/or the applicant was still legally married shall not serve as the basis for visa issuance, even though that marriage was terminated and applicant/petitioner became free to marry within 90 days of arrival in the United States.  If a you find that the petitioner and/or applicant is/was not legally free to marry, you must return the K-1 petition to NVC under cover of memorandum detailing the specific, objective facts giving rise to the officer’s determination.
(3)  Multiple Petitions Approved for Same K-1 Beneficiary:  In instances where more than one U.S. citizen fiancé́(e) has filed visa petitions on behalf of the same alien and more than one K-1 visa petition has been approved for the same beneficiary, you must suspend action and return all petitions with a covering memorandum to USCIS district director who approved the last petition so that the petition approvals may be reviewed.
(4)  Marriage for Purpose of Evading Immigration Laws (INA 204(c)): See 9 FAM 504.2-5(D)(2) paragraph d.
(5)  Additional Factors That May Raise Questions in K-1 Cases:
(a)  There are several possible discrepancies between the facts stated on the petition and the actual circumstances of the K-1 beneficiary which might lead you to question whether the relationship is bona fide or which might cause the petitioner to choose not to go forward with the marriage. These include having one or more children not named in the petition,  a prior undisclosed marriage (even if it has been annulled or ended by divorce or death), or, in the case of a fiancée, a current pregnancy.
(b)  Discovery of a ground of ineligibility of the K-1 applicant raises another issue of the petitioner's awareness of all of the factors associated with the fiancé́(e).
(c)  You should use your discretion in determining whether to return the K-1 petition to USCIS in such cases.  You should, however, first solicit from the petitioner information as to whether he or she was aware of the particular circumstance(s) and whether, in light thereof, he or she still wishes to proceed with the proposed marriage.  If satisfied in this regard, you need not return the petition.  If you have further questions about whether a petition should be returned to USCIS, contact VO/F and FPP.
b. K-1 Relationship Not Satisfactorily Bona Fide:
(1)  You should return the K-1 petition to DHS for reconsideration if not satisfied with respect to the bona fides of the relationship or if the petitioner indicates that he or she no longer intends to go forward with the marriage.
(2)  If you find that the fiancé(e) or marital relationship is not bona fide but is a sham entered into solely for immigration benefits, you should return the K-1 or K-3 petition to NVC with a recommendation for revocation under cover of a memorandum detailing the specific, objective facts giving rise to post’s conclusion.  VO/F and FPP can answer questions and provide assistance in writing effective revocation memos.  All immigrant and K-1/K-3 visa revocation cases are to be returned to the following address:
      National Visa Center
      32 Rochester Avenue
      Portsmouth, NH 03801
      Attn: Fraud Prevention Manager
9 FAM 502.7-5(C)(6)  K Visa Ineligibilities, Waivers
(CT:VISA-163;   08-25-2016)
a.  Former Exchange Visitor:  Before a K visa may be issued to an applicant who is a former exchange visitor and subject to the provisions of INA 212(e), the applicant must establish that the requirements of INA 212(e) have been fulfilled or that a waiver has been obtained. (See 22 CFR 40.202(b) and 9 FAM 302.10-8.)
b. Vaccination Requirements for K Visa Applicants:  See 9 FAM 302.2-6(B)(3).
c. Waiver Availability for Applicants Ineligible under INA 212(a):  A K visa is a nonimmigrant visa, and, therefore, K nonimmigrants are generally eligible for INA 212(d)(3)(A) waivers. However, processing an INA 212(d)(3)(A) waiver would not be appropriate unless an immigrant waiver is also available when the K visa holder applies to adjust status to lawful permanent resident.  To determine whether a waiver is available for a K applicant, you must, therefore, first examine whether the particular INA 212(a) ineligibility is waivable for immigrant spouses of U.S. citizens, under either INA 212(g), INA 212(h), INA 212(i), INA 212(a)(9)(B)(v), INA 212(d)(11) or INA 212(d)(12) or similar provisions.  (For a more complete list, see 9 FAM 302 and 9 FAM 305.)
d. No Waiver Possible:  If the K visa applicant is ineligible for a visa on an INA 212(a) ground for which no immigrant waiver is or would be possible after marriage to the petitioner, then the case should not be recommended for an INA 212(d)(3)(A) waiver and no waiver request should be submitted to USCIS. (See 22 CFR 40.301.)
e. INA 212(d)(3)(A) Waiver for K-1 Fiancé(e) Who Would Qualify for Waiver If Married, or for K-3 Spouse:
(1)  If it is determined that the K visa applicant is ineligible to receive a visa under INA 212(a), but that the ineligibility could be waived after (or as a result of the) marriage to the petitioner, instruct the applicant to file Form I-601, Application for Waiver of Ground of Inadmissibility, with USCIS per USCIS instructions.
(2)  If the case involves a K-1 fiancé(e), you should be satisfied (before beginning that waiver process) that the petitioner is aware of the ineligibility and still wishes to pursue the marriage.  If not, the petition should be returned to USCIS and the waiver process should be terminated.
(3)  You should follow this same general procedure whether the ineligibility is on medical or nonmedical bases, while taking into account any variant procedure required in certain medical cases as set forth in 9 FAM 302.2.
9 FAM 502.7-5(C)(7)  K Visa Issuance, Travel
(CT:VISA-163;   08-25-2016)
a. K Visa Validity:  K-1 and K-2 visas should be valid for six months for one entry. K- 3 and K-4 visas should be valid for multiple entries for 24 months, unless constrained by security clearance requirement or waivers, which are valid for a year or less.  Unmarried aliens entering the United States as a K-4 should be admitted for a period of 24 months or until that alien’s 21st birthday, whichever is shorter (see 8 CFR 214.2(k)(8) and 8 CFR 214.2(k)(11)(v)).
b. K Visa Annotations:  The K visa should be annotated in the following cases:
(1)  K-1 and K-3 visas should be annotated with the name of the petitioner and the petition number.
                PETR.: DOE, JOHN
                PET. NO.: EAC0123456789
(2)  Medical Cases:
(a)  When the medical examination has revealed a Class A tuberculosis or another Class A medical condition, and an INA 212(d)(3)(A) waiver has been granted, the visa should be annotated: “MED: 212(d)(3)(A).”
(b)  When the medical examination has revealed a Class B tuberculosis condition or Class B leprosy, non-infectious, the visa should be annotated: “MED: Class B.”
(3)  Child of a K-1 or K-3: The children’s MRVs should be annotated with the principal alien’s name and date of visa issuance. For example, “P/A: Mary Brown, K-1/K-3 issued 15-AUG-2007.”
c.  K Visa Travel Packet:
(1)  Supporting Documents Placed in Envelope and Hand-Carried by Applicant:  The following supporting documents should be carried by the applicant in a sealed envelope for presentation at the port of entry:
(a)  The K visa petition; and
(b)  Form DS-2054, Medical Examination for Immigrant or Refugee Applicant, and all related worksheets.
(c)  Supporting documents: Supporting documents include copies of all civil documents that are pertinent to the relationship between the petitioner and the beneficiary.  You should be careful NOT to include any criminal information on the petitioner that may have been included in the case file, or any documents that are law enforcement sensitive.(2)   K2 and K4 Children:  In the case of children following-to-join the principal alien who are entitled to K2 or K4 classification, the required documents are to be placed in an envelope together with a copy of the approved K visa petition.
d. Social Security Registration:  Even though a fiancé(e) is treated in most respects like an immigrant, posts do not give a fiancé(e) the information regarding Social Security registration.  DHS will do this at the time of the alien’s adjustment of status.
e. Reissuance of K-1 Visa:  If a K-1 visa, valid for a single entry and a 6-month period, has already been used for admission into the United States and the alien fiancé(e) has returned abroad prior to the marriage, you may issue a new K visa, provided that the period of validity does not exceed the 90th day after the date of initial admission of the alien on the original K visa, provided the alien fiancé(e) pays a new application processing fee, and provided also that the petitioner and beneficiary still intend and are free to marry.  The alien’s return to the United States and marriage to the petitioner must take place within 90 days from the date of the original admission into the United States in K status.
9 FAM 502.7-5(D)  K Visa Petitioner Provisions
9 FAM 502.7-5(D)(1)  International Marriage Broker Regulation Act (IMBRA) – Disclosure of Petitioner Criminal Conviction History, Protection Orders, or Restraining Orders
(CT:VISA-1;   11-18-2015)
(Previous location:  9 FAM 41.81 N14; CT:VISA-1998 06-07-2013)
a. The International Marriage Broker Regulation Act of 2005 (IMBRA) requires, with respect to each I-129F petitions for K status, that USCIS provide to the Department, and the Department in turn to disclose to the K-1 or K-3 applicant, all criminal background information submitted to USCIS by the petitioner and any related criminal conviction information that USCIS discovered in Government records or databases during its routine background check regarding any of the following crimes:
(1)  Crimes involving domestic violence, sexual assault, child abuse and neglect, dating violence, elder abuse, stalking, and any attempt to commit such crimes;
(2)  Crimes involving homicide, murder, manslaughter, rape, abusive sexual contact, sexual exploitation, incest, torture, trafficking, peonage, holding hostage, involuntary servitude, slave trade, kidnapping, abduction, unlawful criminal restraint, false imprisonment, or an attempt to commit any of these crimes;
(3)  Crimes relating to a controlled substance or alcohol where the petitioner has been convicted on at least three occasions and where such crimes did not arise from a single act; and
(4)  Information on any permanent protection or restraining order issued against the petitioner related to any specified crime.
b. The disclosure of any criminal background information regarding the petitioner that USCIS has reported with an approved K petition, including any information on protection orders or criminal convictions, is mandatory.  IMBRA requires that the Department must share, with the K-1 or K-3 nonimmigrant visa applicant who is the beneficiary of the petition, any such criminal background information that USCIS has reported after its check of Government records or databases, while informing the applicant that such criminal background information is based on available records and may not be complete.  This must take place on two occasions: first, when post sends the applicant the instructions regarding the visa application process; and second, at the time of the visa interview, when you must disclose the information to the K-1 or K-3 visa applicant, in the applicant's primary language.  In making this disclosure, you are not authorized to provide the name or contact information of any person who was granted a protection order or restraining order against the petitioner or was a victim of a crime of violence perpetrated by the petitioner, but are to disclose to the applicant the person's relationship to the petitioner.  Because each petitioner for K visa status must have signed a statement in the I-129F expressing their understanding that any criminal background information pertaining to them will be disclosed to petition beneficiaries, you are not required to send a petitioner notification that such disclosure has occurred.
c. During the visa interview, after informing the applicant of any protection orders or criminal background information received from USCIS regarding the petitioner, give the applicant time to decide whether he or she wishes to proceed with the K visa application, and, in the case of an applicant for a K-1 visa, whether he or she still intends to marry the petitioner within 90 days of entering the United States.  Enter case notes into the IVO system to indicate that the applicant received notice of the petitioner's criminal history.  If you have questions, contact your liaison in CA/VO/L/A or CA/VO/F/IE for additional guidance.
9 FAM 502.7-5(D)(2)  Adam Walsh Child Protection and Safety Act of 2006 (“Adam Walsh Act”) – Returning I-129F Petitions Based on Adam Walsh Act Requirements
(CT:VISA-1;   11-18-2015)
(Previous location:  9 FAM 41.81 N15; CT:VISA-1547 09-27-2010)
a. Section 402 of the Adam Walsh Child Protection and Safety Act of 2006 ("Adam Walsh Act"), which became law on July 27, 2006, amended INA 204(a)(1) and INA 101(a)(15)(K), rendering ineligible to file a petition for immigrant status under INA 203(a) or nonimmigrant K status, any petitioner who has been convicted of a "specified offense against a minor," defined in section 111 of the Adam Walsh Act as an offense involving any of the following:
(1)  An offense (unless committed by a parent or guardian) involving kidnapping;
(2)  An offense (unless committed by a parent or guardian) involving false imprisonment;
(3)  Solicitation to engage in sexual conduct;
(4)  Use in a sexual performance;
(5)  Solicitation to practice prostitution;
(6)  Video voyeurism as described in section 1801 of title 18, United States Code;
(7)  Possession, production, or distribution of child pornography;
(8)  Criminal sexual conduct involving a minor or the use of the Internet to facilitate or attempt such conduct;
(9)  Any conduct that by its nature is a sex offense against a minor.
b. Section 402 further provides that the bar against filing a petition because of such a conviction will not apply if the Secretary of Homeland Security, in his or her sole and unreviewable discretion, determines that the petitioner poses no risk to the beneficiary.
c.  Because of the Adam Walsh Act, you must return to the USCIS domestic service center that approved it, via NVC, any approved I-129F petition filed by a U.S. citizen identified as having been convicted of one of the offenses against a minor listed in 9 FAM 502.7-5(D)(2) paragraph a, for reconsideration, unless USCIS has reported that the Secretary of Homeland Security has made the necessary "no risk" determination.  Additionally, USCIS has asked that you return to the approving domestic service center (via NVC) for possible revocation any I-129F petition approved before July 27, 2006 if you are aware of any conviction for a specified sexual or kidnapping criminal offense against a minor that does not appear to have been known at the time of petition approval. Do not disclose conviction information to the visa applicant in cases in which the petition is being returned.
d. The Adam Walsh Act's bar against the filing of a petition for family-based immigrant or K nonimmigrant visa status by an individual who has been convicted of a specified offense against a minor does not apply if the Secretary of Homeland Security exercises his sole and unreviewable discretionary authority and determines that the individual poses no risk to a beneficiary. You may encounter cases in which the criminal history information reported to post by USCIS relates to a conviction for a crime that is one of the specified offenses against a minor listed in 9 FAM 502.7-5(D)(2) paragraph a.  Provided that the petition reflects that there has been a no-risk determination by the Secretary of Homeland Security and you intend to approve the visa application, you should not forward the petition to USCIS based on the conviction in that instance, but instead consider it to have been properly filed under the Adam Walsh Act, while nonetheless informing the K visa applicant, during the interview, of any conviction listed in 9 FAM 502.7-5(D)(2) paragraph a that has been reported by USCIS pursuant to IMBRA.
9 FAM 502.7-5(E)  Synopsis of USCIS Pamphlet for Applicants for K Nonimmigrant Visas and Family-Based Immigrant Visas
(CT:VISA-1;   11-18-2015)
(Previous location:  9 FAM 41.81 Exhibit I; CT:VISA-1940 11-14-2012)
Why are we providing the pamphlet?
The International Marriage Broker Regulation Act (IMBRA) requires that the United States government provide, to an immigrating fiancé(e) or spouse of a citizen or resident of the United States, an information pamphlet on legal rights and resources for immigrant victims of domestic violence. Immigrants are often afraid to report acts of domestic violence to the police or to seek other forms of assistance. Such fear causes many immigrants to remain in abusive relationships.
IMBRA also provides for the United States government to provide, to an immigrating fiancé(e) or spouse of a U.S. citizen who has a history of criminal or domestic violence, a copy of the citizen’s criminal background information.
One of IMBRA’s goals is to provide applicants with accurate information about the immigration process and how to access help if a relationship becomes abusive.
What is domestic violence?
The pamphlet provides detailed explanations of the term “domestic violence” and two related offenses, sexual assault and child abuse.
Domestic violence involving current or former partners is a pattern of behavior where one intimate partner or spouse threatens or abuses the other partner or spouse. Abuse may include physical harm, forced sexual relations, emotional manipulation (including isolation or intimidation), and economic and/or immigration-related threats.
Under all circumstances, domestic violence, sexual assault, and child abuse are illegal in the United States. All people in the United States are guaranteed protection from abuse under the law. Any victim of domestic violence can seek help. An immigrant victim of domestic violence may be eligible for immigration protections.
The pamphlet is intended to help you understand U.S. laws regarding domestic violence and how to get help if you need it.
What are the legal rights for victims of domestic violence in the United States?
All people in the United States, regardless of immigration or citizenship status, are guaranteed basic protections under both civil and criminal law. Laws governing families provide you with:
The right to obtain a protection order for you and your child(ren).
The right to legal separation or divorce without the consent of your spouse.
The right to share certain marital property. In cases of divorce, the court will divide any property or financial assets you and your spouse have together.
The right to ask for custody of your child(ren) and financial support. Parents of children under the age of 21 often are required to pay child support for any child not living with them.
What services are available to victims of domestic violence and sexual assault in the United States?
In the United States, victims of these crimes can access help provided by government or nongovernmental agencies, which may include counseling, interpreters, emergency housing, and even monetary assistance.
The telephone numbers or “hotlines” listed in the pamphlet have operators trained to help victims 24 hours a day free of charge. Interpreters are available, and these numbers can connect you with other free services for victims in your local area, including emergency housing, medical care, counseling, and legal advice. If you cannot afford to pay a lawyer, you may qualify for a free or low-cost legal aid program for immigrant crime or domestic violence victims.
What immigration options may be available to a victim of domestic violence, sexual assault, or other crime?
The pamphlet outlines three ways immigrants who become victims of domestic violence, sexual assault, and some other specific crimes may apply for legal immigration status for themselves and their child(ren): (1) self-petitions for legal status under the Violence Against Women Act (VAWA); (2) cancellation of removal under VAWA; or (3) U nonimmigrant status. Because a victim’s application is confidential, no one - including an abuser, crime perpetrator, or family member - will be told that the victim applied. A victim of domestic violence should consult an immigration lawyer who works with other victims to discuss immigration options that may be available.
How does the U.S. Government regulate “international marriage brokers”?
Under IMBRA, “international marriage brokers” are required to give the foreign national client background information on the U.S. client who wants to contact the foreign national client, including information contained in Federal and State sex offender public registries, and to get the foreign national client’s written permission before giving the U.S. client the foreign national client’s contact information. If you are a foreign national client, the agency is required to give you a copy of the pamphlet. It is prohibited from doing business with individuals who are under 18 years of age.
Can a K nonimmigrant visa applicant rely on criminal background information that USCIS has compiled on a U.S. citizen fiancé(e) or spouse?
IMBRA requires the U.S. Government to share any criminal background information on a K nonimmigrant petitioner with the fiancé(e) or spouse who is applying for a K visa as the beneficiary of such a petition. The criminal background information compiled by USCIS comes from various public sources, as well as information provided by the U.S. citizen clients on immigration applications. USCIS does not have access to all criminal history databases in the United States. The U.S. citizen sponsor may not tell the truth in the sponsorship application. It is also possible the U.S. citizen has a history of abusive behavior but was never arrested or convicted. Therefore, the criminal background information an applicant receives may not be complete. The intent of the law is to provide available information and resources to immigrating fiancé(e)s and spouses. Ultimately, you are responsible for deciding whether you feel safe in the relationship.
Can foreign fiancé(e)s or spouses who are victims of domestic violence also be victims of human trafficking?
Other forms of exploitation, including human trafficking, can sometimes occur alongside domestic violence, when the exploitation involves compelled or coerced labor, services, or commercial sex acts. The pamphlet contains information on how to obtain help regarding human trafficking.
 Read here.

The denial rates vary from 0% in San Marino, Liechtenstein, and Andorra to 96% in Republic of Palau, 63% Syria, 34% Ukraine, 13% Belarus, and 10% Russia.

Please note that this applies only to applications for B-1 and B-2 visitor or tourist visa.

If you have questions or need help applying for your visitor or tourist visa to the United States, please email an attorney to schedule a consultation.

По-русски: статистика отказов в выдаче гостевой или туристической визы в США в 2015 году.
​Это относится только к визе B1 | B2.
Украина - 34% заявлений отказано.
Россия - 10% заявлений отказано.
Беларусь - 13% заявлений отказано.
Грузия - более 50% отказано.
Франция - 16% отказано.
Казахстан - 12.7% отказано.
Молдова - 42% отказано.
Узбекистан - 50% отказано.
Таджикистан - 44.44% отказано. 

Interesting and detailed statistics for the last fiscal year 2015 can be found here: 
https://travel.state.gov/content/dam/visas/Statistics/Non-Immigrant-Statistics/RefusalRates/FY15.pdf

November 25, 2015 marked the 25th anniversary of the H-1B work visa to the United States.

Smithsonian museum is offering an H1B work visa exhibit online which mostly includes art and reflections on life in the USA of those living in the US on H1B work visa and their dependants on H4 visa. 

Read more here.

The Smithsonian exhibit can be viewed at this link.

One of the paintings, named "H1B indentured servitude," is here.

Belarus: 

EU suspended for four months the asset freeze and travel ban applying to 170 government officials and other individual citizens of Belarus. The suspension of sanctions is for four (4) months only, effective dates October 31, 2015 to February 29, 2016. This decision was taken in response to the release of all Belarusian political prisoners on August 22nd, and in the context of improving EU-Belarus relations.

In Russian: 

ЕС сняли санкции с Беларуси, разморозили счета и отменили мораторий на поездки в Европу 170 официальных представителей Беларуси. Это снятие санкций временное и действительно пока только на 4 месяца (с 31 октября 2015 по 29 февраля 2016 года). Снятие санкций - это результат того, что 22 августа администрация президента в Беларуси освободила последнего полит заключенного и общее улучшение отношений между Белурусью и Европой.

Please read more here. Тут об этом более подробно.

U.S. Customs and Border Protection launched today the redesigned website for Visa Waiver Program (VWP) visitors to apply for an Electronic System for Travel Authorization (ESTA) prior to traveling to the United States. The new website makes the process of applying for an ESTA more user-friendly and will improve and better facilitate the experience for VWP travelers wishing to visit the United States. 

Some of the new and updated features include:

• Access to frequently asked questions at any time during the application process.
• Mobile-friendly design allows VWP visitors to apply and check the status of their ESTA using their smartphones.
• Users will be able to translate the page into a different language at any point in the application by choosing one of the 23 languages in the language selector.
• The Group feature has been moved to the beginning of the application process making it easier for families and groups to submit their applications at once.

VWP visitors who have already applied for an ESTA using the old site will be able to access their ESTA on the new site. Travelers with a valid ESTA will not have to reapply for a new ESTA until their current ESTA expires or they receive a new passport.
CBP reminds VWP visitors that ESTA applications can only be submitted through the official website. ESTA is not affiliated with any third-party sites. CBP recommends ESTA applications be submitted as soon as an applicant begins making travel plans.
The VWP enables nationals of 38 designated countries to travel to the United States for tourism or business purposes for stays of 90 days or less without first obtaining a visa. All nationals or citizens of VWP countries are required to have an approved ESTA prior to boarding a carrier to travel by air or sea to the United States under the VWP. ESTA applications should be submitted at least 72 hours before travel, and once approved, will generally be valid for up to two years or until the applicant’s passport expires, whichever comes first. Authorizations will be valid for multiple entries into the United States.

New redesigned VWP ESTA website at: https://esta.cbp.dhs.gov/esta/

On September 09 2015, USCIS Announces Revised Procedures for Determining Visa Availability for Applicants Waiting to File for Adjustment of Status.

USCIS, in coordination with Department of State (DOS), is revising the procedures for determining visa availability for applicants waiting to file for employment-based or family-sponsored preference adjustment of status. The revised process will better connect USCIS procedures with the US Department of State (DOS) procedures, which are used for foreign nationals who seek to become U.S. permanent residents by applying for immigrant visas at U.S. consulates and embassies abroad.

The Visa Bulletin revisions implement November 2014 executive actions on immigration announced by President Obama and Secretary of Homeland Security Johnson, as detailed in the White House report, Modernizing and Streamlining Our Legal Immigration System for the 21st century, issued in July 2015. 

What is Changing.

Starting October 1, 2015, you will be able to submit your application for adjustment of status or for an immigrant visa before your priority date is current. 

Two charts per visa preference category will be posted in the DOS Visa Bulletin:

• Current priority dates for particular visa categories; and
• The earliest dates for filing application for adjustment of status (earliest dates when applicants may be able to apply).

See October 2015 Visa Bulletin here. However, the priority dates in the Visa Bulletin can retrogress in November. Consult an attorney about your specific case so you won't miss the opportunity of applying earlier.

When filing an application for adjustment of status, I-485, an applicant can concurrently file an application for a work permit and advance parole. This is great news for many immigrants waiting for many years for their priority dates to become current. However, it's a good idea to consult an immigration attorney before applying.

Each month, in coordination with DOS, USCIS will monitor visa numbers and post the relevant DOS Visa Bulletin chart. Applicants can use the charts to determine when to file their Form I-485, Application to Register Permanent Residence or Adjust Status.

To determine whether additional visas are available, USCIS will compare the number of visas available for the remainder of the fiscal year with:

• Documentarily qualified visa applicants reported by DOS;
• Pending adjustment of status applications reported by USCIS; and
• Historical drop off rate (for example, denials, withdrawals, abandonments).

About the Visa Bulletin.

DOS publishes current immigrant visa availability information in a monthly Visa Bulletin. The Visa Bulletin indicates when statutorily limited visas are available to prospective immigrants based on their individual priority date.

• The priority date is generally the date when the applicant’s relative or employer properly filed the immigrant visa petition on the applicant’s behalf with USCIS. If a labor certification is required to be filed with the applicant’s immigrant visa petition, then the priority date is when the labor certification application was accepted for processing by Department of Labor.
• Availability of an immigrant visa means eligible applicants are able to take one of the final steps in the process of becoming U.S. permanent residents. 

Read more here.  

In Russian: 

Российская газета "Новые Известия" опубликовала дельную статью про опасность "бесплатных юридических консультаций". Журналисты проинтервьюировали некоторых моих московских партнеров и коллег. 

Как известно, бесплатный сыр бывает только в мышеловке. Ты получаешь то, за что заплатил.

Хороший компетентный и этический адвокат НЕ будет предоставлять консультацию (давать юридический совет) бесплатно. В оказании юридических услуг самое главное - это получить правильный совет и знать что делать и как поступить.  

Среди "юридических фирм" и "иммиграционных консультантов" попадается немало мошенников или недобросовестных и малограмотных "специалистов". Особенно много вебсайтов на интернете, которые в поисковике выходят в самом начале как реклама (так как вебсайт платит за такое выгодное размещение) и нелицензированных "иммиграционных консультантов" или "нотариусов", которые предлагают "первую" консультацию бесплатно и готовы перезвонить потенциальному клиенту в течение 5 минут. Что следует дальше, об этом люди не задумываются. А им навязывается контракт на завышенную сумму, с ненужными сервисами или предлагаются ненужные или вредные для дела действия (которые дорого стоят). После предоставления бесплатной консультации, такому специалисту ведь нужно как-то заработать на клиенте (на которого было потрачено время) -- если уж не брать оплату за консультацию, то ее используют как ловушку для доверчивых граждан, готовых повестись на обман.

Следует иметь в виду, что хороший опытный адвокат не будет и не имеет права давать "гарантии" успеха или гарантии выигрыша вашего дела. Опытный адвокат ценит свое и ваше время, и для того, чтобы проконсультировать клиента ей/ему нужно изучить ваши обстоятельства и проанализировать возможные варианты и осложнения перед тем как давать платный (ни в коем случае не бесплатный совет). 

Хорошая статья обо всем этом в Новых Известиях, с консультациями моих Московских партнеров и коллег.

On November 20, 2014, the President announced a series of executive actions. However, not all of these initiatives have been implemented, and USCIS is not accepting any DAPA or expanded DACA applications at this time. 

Beware of anyone who offers to help you submit an application or a request for any of these actions before they are available. You could become a victim of an immigration scam. 

If you need legal advice on immigration matters, make sure that the person you rely on is an attorney who is authorized to give you legal advice. Only an attorney or an accredited representative working for a Board of Immigration Appeals-recognized organization can give you legal advice. An immigration attorney can be licensed in any state because immigration law is federal law. It's important to consult an experienced and knowledgeable attorney before submitting any immigration applications.

The Internet, newspapers, radio, community bulletin boards and local businesses storefronts are filled with advertisements offering immigration help. Not all of this information is from attorneys and accredited representatives. There is a lot of information that comes from organizations and individuals who are not authorized to give you legal advice, such as “notarios” and other unauthorized representatives. The wrong help can hurt. Here is some important information that can help you avoid common immigration scams.

Here are some examples of common immigration scams:

**Telephone Scams**.

Do not fall victim to telephone scammers posing as USCIS personnel or other government officials. In most instances, scammers will:

• request personal information (Social Security number, Passport number, or A-number);
• identify false problems with your immigration record; and
• ask for payment to correct the records.

If a scammer calls you, say “No, thank you” and hang up. These phone calls are being made by immigration scammers attempting to take your money and your credit card information. USCIS will not call you to ask for any form of payment over the phone. Don’t give payment over the phone to anyone who claims to be a USCIS official.

If you have been a victim of this telephone scam, please report it to the Federal Trade Commission (FTC). Learn more about telephone scams and telephone scammers’ techniques by visiting Federal Trade Commission-Telemarketing-Scams. 

**"Notario Publico"**.

In many Latin American countries, the term “notario publico” (for “notary public”) stands for something very different than what it means in the United States. In many Spanish-speaking nations, “notarios” are powerful attorneys with special legal credentials. In the U.S., however, notary publics are people appointed by state governments to witness the signing of important documents and administer oaths. "Notarios publico,” are not authorized to provide you with any legal services related to immigration.

Please see the National Notary Association website "What is a Notary Public" for more information.

**Local Businesses who are not law firms and not attorneys or lawyers**.

Some businesses in your community “guarantee” they can get you benefits such as a:

• Visa
• Green Card
• Employment Authorization Document

These businesses sometimes charge you a higher fee to file the application than even a licensed attorney (but will tell you that attorneys charge more "for the same work"). They claim they can do this faster than if you applied directly with USCIS. These claims are false. 

**Dot-com websites - operated by non-attorneys or people not authorized to give legal advice**.

Some websites offering step-by-step guidance on completing a USCIS application or petition will claim to be affiliated with USCIS. Many of these websites are scammers or fraudsters, often taking money for blank forms or minimal assistance without attorney supervision.

USCIS has its own official website: www.uscis.gov with:

• Free downloadable forms
• Form Instructions
• Information on filing fees and processing times

Do not pay for blank USCIS forms either in person or over the Internet. You can download forms for free at www.uscis.gov.

Do not pay to a non-attorney (not a lawyer) for help with immigration paperwork, applications, affidavit. Oftentimes, they give you wrong advice and can potentially damage your chances of ever becoming a permanent resident (getting a green card).

**Green Card Lottery or DV Lottery scams**.

Once a year in fall, the Department of State (DOS) makes 50,000 diversity visas (DVs) available via random selection to persons meeting strict eligibility requirements and who come from countries with low rates of immigration to the United States. During this time or often around the year, it is common for immigration scammers to advertise in emails or websites that reference either the:

• DV lottery
• Visa lottery
• Green Card lottery

These emails and websites often claim that they can make it easier to enter the annual Diversity Immigrant Visa Program. Some scammers even identify you as a DV lottery “winner” and ask for significant amount of money "helping get a visa". These emails and websites are fraudulent. 

The only way to apply for the DV lottery is through an official government application process (Department of State website, and only when it's open, during an application period which is usually in October-November only). DOS does not send emails to applicants. 

On or after May 1st, you can visit the Department of State website to verify if you are actually a winner in the DV lottery. 

If need help, consult a licensed attorney (not one of the "green card lottery" websites).

**INS doesn't exist. It's been replaced by DHS and USCIS**.

To this day, some local businesses, websites, "notarios"  and individuals make reference to the Immigration and Naturalization Service (INS). This agency no longer exists! 

If someone refers to USCIS as "INS", it's a sign that they are not an attorney, but rather someone unqualified with little knowledge in immigration matters.

INS was dismantled on March 1, 2003, and most of its functions were transferred from the Department of Justice to three new components within the newly formed Department of Homeland Security. U.S. Citizenship and Immigration Services (USCIS) is the component that grants immigration benefits. The other two components are U.S. Immigration and Customs Enforcement and U.S. Customs and Border Protection.

All official correspondence regarding your immigration case will come from USCIS. USCIS will communicate with you and your attorney by mail, by mailing you notices, approved work permit and green card through USPS (postal service).

If you need a legal assistance, we will be glad to help. Our contact information is here.

Read here. 

Applicants from all over the world who registered for the DV-2016 program were selected at random from 11,391,134 qualified entries (17,573,350 with derivatives) received during the application period that ran from noon, Eastern Daylight Time on Wednesday, October 1, 2014 until noon, Eastern Daylight Time on Monday, November 3, 2014. 

The visas have been apportioned among six geographic regions with a maximum of seven percent available to persons born in any single country. 

The Kentucky Consular Center registered and notified the winners of the DV-2016 diversity lottery. Approximately 91,563 applicants have been registered and notified and may now make an application for an immigrant visa (so called"selectees" or "winners"). Some of the first *50,000 persons registered will not pursue their cases to visa issuance, this larger number (91,563 selectees) should insure that all DV-2016 numbers will be used during fiscal year 2016 (October 1, 2015 until September 30, 2016).

During the visa interview, principal applicants must provide proof of a high school education or its equivalent, or show two years of work experience in an occupation that requires at least two years of training or experience within the past five years. Those selected will need to act on their immigrant visa applications quickly. Applicants should follow the instructions in their notification letter and must fully complete the information requested. 

Registrants living legally in the United States who wish to apply for adjustment of status instead of consular processing of their visas, must apply through USCIS Department of Homeland Security (** Please note that you have to be eligible for adjustment of status. Therefore, if you were selected as a winner in the Green Card lottery and you live in the United States, it's advisable to consult an experienced attorney before applying for your green card). 

Once the total *50,000 visa numbers have been used, the program for fiscal year 2016 will end. Selected applicants (aka "selectees" or "winners") who do not receive visas by September 30, 2016 will derive no further benefit from their DV-2016 registration. Similarly, spouses and children accompanying or following to join DV-2016 principal applicants are only entitled to derivative diversity visa status until September 30, 2016.

Section 203(c) of the INA provides up to 55,000 immigrant visas each fiscal year to permit additional immigration opportunities for persons from countries with low admissions during the previous five years. The NACARA stipulates that beginning with DV-99, and for as long as necessary, up to 5,000 of the 55,000 annually-allocated diversity visas will be made available for use under the NACARA program. This resulted in reduction of the DV-2015 annual limit to 50,000. DV visas are divided among six geographic regions.  No one country can receive more than seven percent of the available diversity visas in any one year.

P.S. Our office would be happy to assist you with your DV visa application or adjustment of status should you be selected as a winner. Please email us to schedule a phone or Skype consultation. Please remember that a visa must be issued prior to September 30th of the current fiscal year (09-30-2016 for DV-2016 winners). No visas will be issued after this date. If selected as a winner you should act fast and submit your applications and required documents in a timely matter. Assistance of a qualified and experienced immigration attorney would be of great help to many. 

The following is the statistical breakdown by foreign-state chargeability of those registered for the DV-2016 program: 

AFRICA

ALGERIA  1,952

ETHIOPIA  4,000

NIGER  102

ANGOLA  108

GABON  32

RWANDA  412

BENIN  914

GAMBIA, THE  67

SAO TOME AND PRINCIPE  2

BOTSWANA  4

GHANA  3,179

SENEGAL  427

BURKINA FASO  199

GUINEA  1,818

SEYCHELLES  0

BURUNDI  208

GUINEA-BISSAU  4

SIERRA LEONE  2,141

CABO VERDE  6

KENYA  2,729

SOMALIA  272

CAMEROON  3,047

LESOTHO  5

SOUTH AFRICA  535

CENTRAL AFRICAN REP.  23

LIBERIA  4,430

SOUTH SUDAN  17

CHAD  40

LIBYA  240

SUDAN  3,216

COMOROS  3

MADAGASCAR  75

SWAZILAND  7

CONGO  124

MALAWI  17

TANZANIA  93

CONGO, DEMOCRATIC REPUBLIC OF THE  4,475

MALI  114

TOGO  1,241

COTE D’IVOIRE  1,129

MAURITANIA  15

TUNISIA  227

DJIBOUTI  92

MAURITIUS  41

UGANDA  453

EGYPT  4,024

MOROCCO  1,993

ZAMBIA  57

EQUATORIAL GUINEA  0

MOZAMBIQUE  11

ZIMBABWE  152

ERITREA  544

NAMIBIA  18

ASIA

AFGHANISTAN  406

JAPAN  302

QATAR  42

BAHRAIN  13

JORDAN  349

SAUDI ARABIA  267

BHUTAN  22

NORTH KOREA  0

SINGAPORE  39

BRUNEI  1 

KUWAIT  143

SRI LANKA  704

BURMA  236

LAOS  1

SYRIA  460

CAMBODIA  1,229

LEBANON  225

TAIWAN  297

HONG KONG SPECIAL
ADMIN. REGION  151

MALAYSIA  95

THAILAND  73

INDONESIA  126

MALDIVES  3

TIMOR-LESTE  0

IRAN  4,501

MONGOLIA  185

UNITED ARAB EMIRATES  103

IRAQ  330

NEPAL  3,801

YEMEN  724

ISRAEL  162

OMAN  12

EUROPE

ALBANIA  1,931

GREECE  93

NORWAY  35

ANDORRA  0

HUNGARY  186

POLAND  629

ARMENIA  1,277

ICELAND  3

PORTUGAL  58

AUSTRIA  50

IRELAND  89

  Macau  23

AZERBAIJAN  380

ITALY  410

ROMANIA  626 

BELARUS  811

KAZAKHSTAN  376

RUSSIA  2,200

BELGIUM  47

KOSOVO  244

SAN MARINO  0

BOSNIA & HERZEGOVINA  92

KYRGYZSTAN  209

SERBIA  283

BULGARIA  865

LATVIA  73

SLOVAKIA  70

CROATIA  67

LIECHTENSTEIN  0

SLOVENIA  33

CYPRUS  28

LITHUANIA  153

SPAIN  193

CZECH REPUBLIC  74

LUXEMBOURG  0

SWEDEN  108

DENMARK  35

MACEDONIA  258

SWITZERLAND  122

ESTONIA  40

MALTA  0

TAJIKISTAN  337

FINLAND  57

MOLDOVA  1,854

TURKEY  1,795

FRANCE  510

MONACO  0

TURKMENISTAN  124

  French Polynesia  1

MONTENEGRO  8

UKRAINE  4,507

  Saint Martin  1

NETHERLANDS  81

UZBEKISTAN  4,300

  Wallis and Futuna  1

  Aruba  4

VATICAN CITY  0

GEORGIA  571

  Curacao  2

GERMANY  678

NORTHERN IRELAND  9

NORTH AMERICA

BAHAMAS, THE  16

OCEANIA

AUSTRALIA  832

NAURU  12

SAMOA  5

  Cocos Islands  1

NEW ZEALAND  208

SOLOMON ISLANDS  0

FIJI  393

  Cook Islands  4

TONGA  26

KIRIBATI  4

PALAU  4

TUVALU  0

MARSHALL ISLANDS  0

PAPUA NEW GUINEA  3

VANUATU  5

MICRONESIA, FEDERATED STATES OF  3

SOUTH AMERICA, CENTRAL AMERICA, AND THE CARIBBEAN

ANTIGUA AND BARBUDA  0

DOMINICA  6

SAINT KITTS AND NEVIS  2

ARGENTINA  68

GRENADA  7

SAINT LUCIA  5

BARBADOS  0

GUATEMALA  31

SAINT VINCENT AND THE GRENADINES  7

BELIZE  0

GUYANA  14

SURINAME  3

BOLIVIA  49

HONDURAS  73

TRINIDAD AND TOBAGO  51

CHILE  17

NICARAGUA  58

URUGUAY  21

COSTA RICA  50

PANAMA  5

VENEZUELA  1,038

CUBA  1,488

PARAGUAY  7

P.S. Natives of the following countries were not eligible to participate in DV-2016: Bangladesh, Brazil, Canada, China (mainland-born, excluding Hong Kong S.A.R., Macau S.A.R., and Taiwan), Colombia, Dominican Republic, Ecuador, El Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, the Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam. 

Our office would be happy to assist you with your DV visa application or adjustment of status should you be selected as a winner. Please email us to schedule a phone or Skype consultation. Please remember that a visa must be issued prior to September 30th of the current fiscal year (09-30-2016 for DV-2016 winners). No visas will be issued after this date. If selected as a winner you should act fast and submit your applications and required documents in a timely matter. Assistance of a qualified and experienced immigration attorney would be of great help to many. 

As reported by Bloomberg Business News, birth tourism from China to the US is booming. Although it’s not illegal to travel to the U.S. to give birth, it’s illegal to lie about the purpose of a visit when interviewed by American Consul or by immigration or customs officers at the US airport—or coach someone to do so. 

If a woman says she’s traveling to the U.S. to give birth, the consular and customs officers may request proof that she can pay for her hospital stay. (The same would be asked of anybody seeking medical treatment in the U.S.) 

Department of Homeland Security and the IRS have been investigating the growing business of “birth tourism,” which operates in a legal gray area, since last June. The industry is totally unregulated and mostly hidden.

No one knows the exact number of Chinese birth tourists or services catering to them. Online ads and accounts in the Chinese-language press suggest there could be hundreds, maybe thousands, of operators. A California association of these services called All American Mother Service Management Center claims 20,000 women from China gave birth in the U.S. in 2012 and about the same number in 2013. These figures are often cited by Chinese state media, but the center didn’t reply to a request for comment. The Center for Immigration Studies, an American organization that advocates limiting the scope of the 14th Amendment, estimates there could have been as many as 36,000 birth tourists from around the world in 2012. Estimated fees paid by Chinese birth tourists to the agencies catering to them are around USD30,000 to USD60,000.

Department of Homeland Security declined to discuss the investigation because it is ongoing, but the agent in charge said: “Visa fraud is a huge vulnerability for the country. These women allegedly lied to come have a baby. Other people could come to do something bad. We have to maintain the integrity of the system.” 

Read the story here. 

Immigration Relief Measures for Nepali Nationals.

On May 5, 2015, USCIS had made the following announcement:

USCIS several immigration relief measures that may be available to Nepali nationals who are affected by the magnitude 7.8 earthquake that struck Nepal on April 25, 2015.

Measures that may be available to eligible Nepali nationals upon request include:

• Change or extension of nonimmigrant status for an individual currently in the United States, even if the request is filed after the authorized period of admission has expired;
• A grant of re-parole;
• Expedited processing of advance parole requests;
• Expedited adjudication and approval, where possible, of requests for off-campus employment authorization for F-1 students experiencing severe economic hardship;
• Expedited adjudication of employment authorization (work permit) applications, where appropriate;
• Consideration for waivers of fees associated with USCIS benefit applications, based on an inability to pay; and
• Assistance replacing lost or damaged immigration or travel documents issued by USCIS, such as Permanent Resident Cards (green cards).

To learn more, consult an attorney, or visit uscis.gov/humanitarian/special-situations or call the National Customer Service Center at 1-800-375-5283 (TDD for the hearing impaired: 1-800-767-1833).

See here. 
 

Did you apply for the 2016 DV lottery? It's time to find your DV-2016 confirmation number! 

Starting May 5, 2015, y ou can check your DV-2016 Green Card Lottery entry status at dvlottery.state.gov .

Please keep in mind that Entrant Status Check online is the ONLY means by which you will be notified of your selection for further processing in the Diversity Visa lottery. You will never be notified or requested to pay fees by mail, email, phone -- ONLY through online status check. 

If you have misplaced your DV lottery confirmation number, you can use the retrieval tool in Entrant Status Check to recover it at https://www.dvlottery.state.gov/

If you have been selected as a WINNER and need help with the visa application process (if you are outside of the United States and will apply at the US embassy or consulate in your country) or with adjustment of status (if you are residing in the United States and eligible for adjustment of status), you are welcome to contact our office for advice or legal assistance. We would be glad to help!

Beginning Friday, May 1, 2015 USCIS will accept only the new version (edition date: 10/23/14) of Form I-129, Petition for a Nonimmigrant Worker. The edition date is printed at the bottom of every page. 

On or after May 1st 2015, USCIS will reject all previous editions of this form.

Form I-129 is used to apply for many work visas (H1B, R-1, O, L, P, etc). 

A new form I-129 can be found at: http://www.uscis.gov/i-129 

Almost daily, I hear from some of our callers: "I don't need legal consultation, I don't want to hire an attorney. I have only one or two very simple (or quick, or easy) questions, and I want an attorney to answer my questions right now and free of charge because my questions are so simple, quick, and easy!"

I will try to explain why this request doesn't make any sense and how to get proper legal advice.

U.S. immigration law is very complex and constantly changing. There have been no major immigration reforms or amnesties in the past few years (which requires a law to be approved by Congress and signed by the President). However, there have been significant changes introduced by our current and former administrations and the executive branch of the government: executive actions; executive orders of the President; USCIS and DHS memorandums and policy guidance; official and unofficial practice advisories; and changes through our judicial branch (federal and immigration courts), such as, the decisions by the BIA, AAO, Courts of Appeals, US Supreme Court, and even by federal district court judges (for example, an injunction by a federal judge can place on hold an executive order of the President of the United States).

U.S. immigration law is federal in nature and is the same in all states. However, it may apply differently to your situation depending on your background, your place of residence or domicile, US embassy in the country where you apply for a visa, etc.

An experienced immigration attorney may be able to guide you and advise you about specifics, loopholes, various options, and can spot possible problems before they happen, even if it seems to you that your case is pretty straightforward and you have only "one quick question". A seemingly simple or quick question not always can be answered with a simple "yes" or "no" answer. You may not realize it, but a situation may have a lot of hidden issues or variables depending on your venue, court jurisdiction, your factual circumstances, your arrest and criminal record, your family situation and status, prior legal assistance, prior legal actions and applications filed, or even timing, etc.

You can find a lot of useful immigration-related INFORMATION on our Blog. We compiled useful information and links: USCIS forms and fees, case status inquiry, processing times, AR-11 Change of Address, Department of State and NVC, and much more here. Hope you find this information helpful!

To ask basic questions about USCIS immigration forms, filing fees or to inquire about status of your pending case, you can contact USCIS, Department of Homeland Security, by calling their 800 Customer Service Hotline (number is on their website), or send an e-request via a webportal at USCIS website. Case status can be checked online, as well. Immigration courts, U.S. embassies and consulates and National Visa Center each have their own hotlines, call centers or other ways to contact them.

To receive a case-specific legal advice you should talk to a lawyer. Before a lawyer can advise you, we usually email you our confidential immigration questionnaire, and ask you to complete and return it to us. In some cases, we can ask you to email us copies of your immigration forms, paperwork, personal documents. When an attorney reviews your answers to our questionnaire and your documents, it helps her to get to know you, your situation, and decide what legal and/or visa options you shall consider, what are your best chances of obtaining certain visas and immigration benefits, how and when can you bring your family to USA, are you eligible for permanent residency or a green card in the United States, are you eligible to apply for U.S. citizenship, how can your children become U.S. citizens, etc.

It's important that you provide truthful, accurate and complete answers to our questions because an attorney's advice to you is based on information you provide to an attorney. It could be dangerous to give misleading, incomplete or incorrect answers to an attorney.

An attorney or a lawyer is often called "a counselor in law". It means that an attorney counsels and advises you, helps you to understand your situation better, anticipates any possible future issues or complications, offers guidance, and a long-term strategy and planning for yourself and your family.

Legal advice is never a simple "yes" or "no" answer, it's never "use this form"  or "this is the link where you can find all information and all answers you need". Legal advice or consultation is like going to see a doctor. A doctor will ask you questions, take your vitals and administer necessary tests, then she will be able to diagnose you and offer you an appropriate treatment plan. The same is true about work of a good and ethical attorney. An attorney will have to ask you a number of questions, review your documents and paperwork, and only then she will be able to advise you, and offer you guidance and counsel.

In order to avoid mistakes and future complications, it's smart to consult an attorney before starting any legal, immigrant or visa process. Consultation with knowledgeable and ethical attorney should serve as a preventative measure and a way to establish a roadmap and plan your future.

In over twelve years of practice as an immigration attorney in the United States, I have come across of many unfortunate individuals who got themselves into trouble after reading and following wrong advice on internet forums, listening to their friends, co-workers, relatives and neighbors advice, or paying to complete their "paperwork" to an unlicensed "immigration consultant", or "notario", or "tax preparer", or somebody else who speaks their native language in their immigrant community but has no proper training and is not a licensed attorney. In some of these cases, individual's chances of living in USA legally can be permanently destroyed. Some people can become permanently banned from the United States, no matter how many close family members (wife, kids, parents) and other ties they have in USA. Immigration law is very complex and unforgiving, and non-compliance, fraud or misrepresentation could bring consequences more severe than penalties in an average criminal case. Where a convicted criminal can usually expect to be released from prison after a number of months or years and be reunited with his family, a person who was deported and permanently banned from USA may never be able to reunite with his family and loved ones in the United States. Lack of knowledge or bad advice is not an excuse in immigration law. "Simple mistakes" in immigration law context could be costly and often irreversible.

Do yourself a favor and consult a knowledgeable immigration attorney before filing any applications or petitions with the USCIS Department of Homeland Security, or before submitting any visa applications online. You can also schedule a consultation to seek a second opinion, if not sure that your current or former attorney's advice is correct as applies to you. When you have questions or need legal advice you can email us to schedule a consultation. We will be glad to help you.

In May 2015 Visa Bulletin, the US Department of State had implemented a cutoff date for EB-5, immigrant investor visa category for China. 
In May 2015 Bulletin, it retrogresses to May 1, 2013 (two years).

How will it affect dependent children of a primary investor? How to protect dependents from ageing-out and becoming ineligible for a visa?

On April 13, 2015, Visa Office attended IIUSA 2015 EB-5 Regional Economic Advocacy Conference and provided some guidance on application of CSPA to those derivative children:

May 2015 visa bulletin can be found here. 

US Dept of State issued a new policy guidance for immigrant visa applicants who were unable to use an Immigrant Visa (IV) during its validity period. 

9 FAM 42.74 N1 ISSUING REPLACEMENT VISA DURING VALIDITY OF ORIGINAL VISA (CT:VISA-2270; 03-31-2015) 

a. If you are satisfied that an applicant will be or was unable to use an immigrant visa (IV) during its validity period because of reasons beyond the applicant’s control and for which the applicant is not responsible then you may issue a replacement visa with the originally allocated visa number within the same fiscal year even though the visa has not yet expired. 

b. You should recall and cancel the originally-issued visa and collect once again the appropriate IV application processing fee (including the Diversity Visa Lottery Fee for a DV applicant), unless the applicant was unable to use the visa as a result of action by the U.S. Government over which the alien had no control and for which the alien was not responsible. 

c. An applicant who will be or was unable to use an IV during its validity period because of reasons within the applicant's control can submit a new visa application if the petition has not been revoked and if the basis for immigration still exists (i.e., familial relationship). 
This also applies for new IV applications outside of the original IV's fiscal year of issuance. 

9 FAM 42.74 N1: 
http://www.state.gov/documents/organization/87915.pdf

SEVP releases 2015 international student data, launches interactive mapping tool.

“SEVIS by the Numbers,” a quarterly report on international students studying in the United States, was released Wednesday by the Student and Exchange Visitor Program (SEVP), part of U.S. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI). The report highlights February 2015 data from the Student and Exchange Visitor Information System (SEVIS), a Web-based system that includes information about international students, exchange visitors and their dependents while they are in the United States. New this edition, users can also visit the Study in the States website to review international student data from “SEVIS by the Numbers” via an interactive mapping tool.

Based on data extracted from SEVIS Feb. 6, 2015, 1.13 million international students, using an F (academic) or M (vocational) visa, were enrolled at nearly 8,979 U.S. schools. This marked a 14.18 percent increase in international students when compared to January 2014 data. The number of certified schools remained relatively static, increasing just more than one percent, during the same time period.  

Seventy-six percent of all international students were from Asia. The top 10 countries of citizenship for international students included: China, India, South Korea, Saudi Arabia, Canada, Japan, Vietnam, Taiwan, Mexico and Brazil.

In February 2015, only 30 SEVP-certified schools had more than 5,000 international students enrolled. The University of Southern California, Purdue University, Columbia University, the University of Illinois and New York University ranked one through five among U.S. schools with the most international students. More than 10,000 international students were enrolled at each of these schools.

Thirty-seven percent of international students studying in the United States, equating to more than 400,000 individuals, were enrolled in STEM (science, technology, engineering and mathematics) coursework in February. Eighty-six percent of international students pursuing STEM studies were from Asia.

The February 2015 report includes a special section about women pursuing STEM studies. In the past five years, the total number of female international students studying STEM fields increased more than 68 percent, from 76,638 in February 2010 to 128,807 in February 2015. Sixty-two percent of these female international students were from China and India. Also since 2010, the number of female international students pursuing STEM-focused master’s degrees increased 114 percent. Thirty-four percent of all female students pursuing STEM studies were enrolled at schools in California, New York and Texas.

Other key points from the report include: 76 percent of SEVP-certified schools had between zero and 50 international students; 73 percent of international students were enrolled in bachelor’s, master’s or doctoral programs; and California, New York and Florida had the most SEVP-certified schools. A school must be SEVP-certified before it can enroll international students who are in the United States on a student visa.
The full report can be viewed here. Report data was extracted from SEVIS Feb. 6, 2015. It provides a point in time snapshot of data related to international students studying in the United States. Data for the previous “SEVIS by the Numbers” was extracted from SEVIS Oct. 7, 2014.

In addition to the report, on Wednesday, SEVP launched an interactive mapping tool where users can explore and drill down international student data from “SEVIS by the Numbers.” This information is viewable at the continent, region and country level and includes information on gender and education levels for international students from geographical areas across the globe.

SEVP monitors approximately one million international students pursuing academic or vocational studies (F and M visa holders) in the United States and their dependents. It also certifies schools and programs that enroll these students. The U.S. Department of State monitors exchange visitors (J visa holders) and their dependents, and oversees exchange visitor programs.

Learn more about SEVP at www.ICE.gov/SEVP. 
You can read the complete report here.

This case proves once again that O visas (visas for individuals with Extraordinary Ability or Achievement) could be tricky and sometimes unpredictable. This O-1B (extraordinary ability visa in arts) was approved and extended two times prior to subsequent denial of another extension.

A popular thoroughbred racehorse trainer has accused the USCIS in a D.C. federal court of engaging in “capricious” and “arbitrary” behavior by denying an assistant trainer an extension of his nonimmigrant worker status after previously granting it without incident.

Mott Thoroughbred Stables Inc. said in its Friday complaint that by surprisingly and abruptly denying an O-1B petition extension to an “indispensable employee” on which the famed stables has relied since he began working there in 2010, the USCIS has caused irreparable harm to Mott Stables’ multimillion-dollar horse-training business.

The complaint asks the court to compel the USCIS to set aside the petition denial and promptly re-adjudicate the petition with deference to the prior approvals. It also asks the court to order the agency to postpone the effective date of its denial of the petition for assistant horse trainer Rodolphe Brisset and grant a temporary visa status pending the outcome of the instant suit.

“The USCIS failed to provide a reasonable explanation for the denial, failed to cite relevant authority for its decision and failed to clearly articulate the reasons for its abrupt departure from past and ongoing practice of approving O-1B petitions for horse trainers,” the complaint says.

The lawsuit says the unsuccessful petition is virtually the same as the ones USCIS previously approved, and that the agency only now has decided that its past approvals were a “material error” on the part of the agency, “in contravention of internal agency guidance on deference to prior approvals.”

Petitioner also asked the court to open up limited discovery to ascertain the agency’s grounds for denying the company’s petition in light of the two previous approvals of the same petition.

Mott Stables is challenging an October 2014 decision by the USCIS Administrative Appeals Office to uphold the denial of an O-1B extension to the trainer.

After two successful approvals, in 2013 the USCIS sent Mott Stables a request for evidence ( RFE )regarding the international acclaim and recognition Brisset has received a horse trainer, according to the complaint.

Among the types of evidence Mott Stables could hand over was “comparable evidence” of Brisset’s distinction as a prominent horse trainer, and in February 2014 the company sent to the USCIS a letter signed by six expert member of the equine community attesting to Brisset’s skills, according to the complaint. Mott Stables also explained the “unique nature” of the thoroughbred racing industry and why the trainer plays “an essential and critical role” in successful training operations, the complaint says.

In March 2014, the USCIS denied the petition, saying Mott Stables hadn’t demonstrated that Brisset had extraordinary ability in the field of endeavor nor that he had sustained national or international acclaim, according to the complaint.

On appeal, Mott Stables argued that a Department of Homeland Security memo says that deference must be given to a prior determination that an individual is eligible for a particular nonimmigrant classification, where extension of that nonimmigrant petition’s validity “involves the same parties and the same underlying facts,” the complaint says.

Mott Stables argued that the USCIS had not explicitly said why it refused the petition and that changed circumstances and new material information — possibly dispositive developments — did not form the basis of the agency’s decision.

When the USCIS’ appellate body AAO upheld the denial, it ruled that the memo's deference order didn’t apply when there was a "material error," which in this case was that since 2010 the agency had incorrectly found that Brisset’s occupation fell within the O-1B classification, according to the complaint.

Mott Stables said in its Friday complaint that this was the first time the USCIS had ever ruled that Brisset’s horse-trainer position did not qualify as a creative activity or endeavor, such that he could have been classified as an alien of extraordinary ability in the arts.

- Law360, Mar. 10, 2015.

A lawsuit was filed on behalf of 11 Filipino workers at L’Amande French Bakery, Los Angeles, CA, who were fraudulently lured by their employer to the United States on E-2 visas and then subjected to exploitative working conditions including forced labor, severe wage theft, immigration-related retaliation, and national origin discrimination.  
(L’Amande is a popular bakery in the Los Angeles-area with stores in Beverly Hills and Torrance.  The owners of L’Amande are Ana Moitinho de Almeida, the daughter of a wealthy and powerful government official in the Philippines, and her husband Goncalo).

The E-2 visa provides temporary work authorization for immigrants with specialized or supervisory skills who are employed by a foreign national who has invested a substantial amount of capital in a U.S.-based business. Like other temporary (or guest) worker visas, E-2 visa holders are dependent on their employers for legal status, with few – and in this case no – protections against employer exploitation and retaliation for asserting workplace rights. In the lawsuit, the workers were recruited under false pretenses for their specialized pastry chef skills, but were forced to do menial labor once they arrived in the United States.

The employer used threats of debt, deportation, and financial ruin in the Philippines to maintain their economic exploitation of the workers while paying legally mandated wages to local workers. After the workers arrived in the United States, the Almeidas threatened them with a significant debt of $11,000 each unless they agreed to work under these illegal conditions for at least three years.  After an investigation by the California Labor Commissioner's Office revealed egregious wage and hour abuses, including 14-hour work days for more than three consecutive months and wages of less than $3 per hour, the Almeidas retaliated against the workers when they refused to lie about their working conditions. As the lawsuit details, half of the workers were fired after they cooperated in the labor investigation. Since the E-2 visa is bound to the employer, the termination has left the workers without a livelihood. Yet, they fear returning to the Philippines because of what the politically powerful Almeida family will do to them there.

“When Ana promised me $2,000 a month to work at her bakery in the United States, I jumped at the chance to provide a better future for my sons than I had. I had no idea that I would be forced to work for 12 hours a day for five weeks straight or that I would be forced to act as a general servant for the Almeidas. When I stood up for my rights and refused to lie to the labor investigator about the conditions I was working in, Ana threatened to sue me and ruin my life and that of my family in the Philippines. Now that she has terminated me, I worry she will make good on her threats, and I worry for my own safety and that of my family if I return to the Philippines. But I feel I have to fight back, because my family is counting on me.”

The lawsuit alleges claims for labor exploitation, discrimination, unfair immigration-related practices, trafficking, and racketeering based on visa fraud, retaliation, and seeks to enjoin ongoing unfair practices. Some of the wage and hour claims alone for the 11 workers amount to more than $700,000, and we will pursue additional damages and penalties based on the many legal claims.

“What is particularly egregious about what the Almeidas did here is that they engaged in a scheme to defraud the U.S. government and the workers, lying about the workers’ wages and conditions,” said Philip Wang, one of the attorneys for the workers at Latham & Watkins LLP. “It wasn’t until the workers arrived in the U.S. that they were threatened with substantial debt unless they kept working. No one should be allowed to profit in this way, especially when it is on the backs of workers who are alone and new to the U.S., and have poor English skills and limited legal recourse.”

Advancing Justice – LA is also seeking immigration relief for the workers, U visas, as victims of labor trafficking, coercive labor practices, and potential persecution if they return to the Philippines. 

The filed complaint can be found here." - Advancing Justice - LA, Mar. 19, 2015.

Beverly Hills bakery workers say they were paid as little as $2 an hour - L.A. Times, Mar. 19, 2015.

China EB-5 Visa Category To Retrogress by June 2015, and a Two-Year Backlog Expected.

The U.S. Department of State's Visa Bulletin for April 2015 explains that continued demand for EB-5 green cards by immigrant investors from China will require a retrogression for the China EB-5 visa category by June 2015 to hold number use within the annual numerical limit. 

It's also expected that the retrogression will be about two years (a two-year backlog).

The bulletin is available at US Dept of State website here. 

Treaty Traders and Treaty Investors Visa E-1 and E-2 visas: new application procedures when applying at the US consulate in Vienna, Austria. Effective May 01, 2015, only electronic submissions will be accepted.The Immigration and Nationality Act provides non-immigrant visa status for a national of a country with which the United States maintains a treaty of commerce and navigation who is coming to the United States to carry on substantial trade, including trade in services or technology, principally between the U.S. and the treaty country, or to develop and direct the operations of an enterprise in which the national has invested, or is in the process of investing a substantial amount of capital which is at risk in a commercial sense. 

TREATY TRADER (E-1) REQUIREMENTS:

• The applicant must be a national of a treaty country;
• The trading firm for which the applicant is coming to the U.S. must have the nationality of the treaty country. Please note that the nationality of an enterprise is determined by the nationality of the enterprise's owner(s);
• The international trade must be "substantial." There must be a sizeable and continuing volume of trade (trade means the international exchange of goods, services, and technology). Title of the trade items must pass from one party to the other;
• The trade of the U.S. enterprise must be principally between the U.S. and the treaty country. More than 50 percent of the international trade involved must be between the U.S. and the country of the applicant's nationality;
• The applicant must be employed in a supervisory or executive capacity, or possess highly specialized skill essential to the efficient operation of the firm. Ordinary skilled or unskilled workers do not qualify. Please note that a detailed explanation of why the applicant's skills are essential for the enterprise in the U.S. is required.

TREATY INVESTOR (E-2) REQUIREMENTS:

• The investor, either a real or corporate person, must be a national of the treaty country;
• The investment must be substantial and placed "at risk" and the funds have to be "irrevocably" committed. The investment must be sufficient to ensure the successful operation of the enterprise. If the funds are not subject to partial or total loss if business fortunes reverse, then the investment is not an investment in the sense intended by the Immigration and Nationality Act (INA) 101(a)(15)(E) and in 9 Foreign Affairs Manual (FAM) 41.51.;
• The investment must be in a real operating enterprise.Speculative or idle investment does not qualify. Uncommitted funds in a bank account or mere ownership of undeveloped land are not considered an investment. Payments in the form of leases or rents for property or equipment may be calculated towards the investment in an amount limited to the funds devoted to that item in any one month;
• The investment may not be marginal. Based on 9 FAM 41.51, the enterprise must either show a financial return that significantly exceeds what is necessary to support a living for the investor or else the enterprise must have the capacity, present or future, to make a significant economic contribution;
• The investor must have control of the funds. Loans secured with the assets of the investment enterprise are not allowed. Loans secured with personal assets are acceptable;
• The investor must be coming to the United States to develop and direct the enterprise. If the applicant is not the principal investor, he or she must be employed in a supervisory, executive, or highly specialized skill capacity. Based on 9 FAM 41.51 Note 14.3 a detailed explanation of why the applicant's skills are "essential" for the enterprise in the United States is required or based on 9 FAM 41.51 Note 14.2 a detailed explanation of why the applicant possesses qualifying "executive or supervisory" experience.

E VISA APPLICATION PROCESSING:

• As of May 1, 2015 electronic submission is the only acceptable method for E visa submission! Cases must be submitted to: [email protected].
  Please use the e-mail subject line: “Surname, Given Name, Business Name, E Visa Application”. Use this email address for specific E visa questions as well as regarding E visa cases already submitted.
• E visa package, submitted electronically, should not exceed 7MB (about 100 pages, pdf only). You may use multiple attachments. Do NOT send “linked” files, as we cannot access or open these. Please scan documents with a maximum of 300 DPI to keep file size small.
• Between now and May 1, 2015 E visa applications may either be submitted electronically or as a printed paper version.Please limit paper versions to 100 pages and note that the review for paper versions might take longer. The mailing address for paper applications is: U.S. Embassy, Boltzmanngasse 16, A-1090 Wien, Att: Consular Section/E Visa Unit.

To begin the process to obtain your E visa, follow the instructions (step 1 and step 2) provided on our homepage at:http://austria.usembassy.gov/niv_applic.html. You may submit your E visa package only once you have completed the visa application form DS-160 and paid the application fee. 

Case review begins upon receipt of a complete application. Incomplete applications will delay processing. Should your case require additional documentation, this office will contact you or your attorney via e-mail. 

Interview scheduling: Please note that all applicants for Treaty Trader/Investor visa will only be able to schedule their appointment for the visa interview only after submitting the request and receiving the approval for appointment from the Embassy. The request can only be approved once the review has been completed. 

Formal adjudication of the case begins with the in-person interview. If, after the interview, the case should require additional documentation, you will receive clear guidance from the Consular Officer on what to submit, and by what method. 

There are three different categories of E visa submission:

1. If this is your first E visa, and you are either applying to work as an employee for a new E visa enterprise or you yourself are the investor, you must submit following documentation: Forms DS-160 and DS-156E; the statement about your intent to return upon termination of your E status; and the full E visa documentation package. Full instructions to build an appropriate E visa package are available here:Instructions for Applying for Nonimmigrant E1/E2 Visas.
2. If you are renewing your E visa, provide the following documentation: Forms DS-160 and DS-156E; the statement about your intent to return upon termination of your E status; a letter from your employer/the U.S. enterprise containing a detailed description of the enterprise’s past and planned activities; proof that the enterprise is still operating, such as copies of the last available U.S. corporate tax returns/updated profit and loss statement/balance sheet/W-2 forms for employees and/or payroll documentation and. Only if there has been a change in the enterprise’s ownership the new ownership documentation needs to be submitted as well.
3. If this is your first E visa, but you are applying to work as an employee for a previously- qualified E visa enterprise, provide the following documentation: Forms DS-160 and DS-156E; the statement about your intent to return upon termination of your E status; a detailed resume or CV and documentation of your professional qualification (such as copies of education degrees, job training certificates and/or letters from previous employers); a letter of support from your prospective U.S. employer containing a detailed position description; proof that the enterprise is still operating, such as copies of the last available US tax return/updated profit and loss statement/balance sheet/W-2 forms for employees and/or payroll documentation and. Only if there has been a change in the enterprise’s ownership the new ownership documentation needs to be submitted as well.

See more at: Non-Immigrant Visa Section | Embassy of the United States Vienna, Austria

A FAM update provides two new examples of the types of exceptional circumstances where consular officers should request authorization from USCIS to accept I-130 petitions. 

The new examples involve adoption of a child, and short notice of position relocation. 

See at 9 FAM 42.41 Notes
http://www.state.gov/documents/organization/87842.pdf

9 FAM 42.41 N4.2-7 Adjudicating Exceptional Circumstance I- 130 Cases (CT:VISA-2247; 01-28-2015) 

a. Consular officers assigned to posts with USCIS public counter presence cannot accept filing or adjudicate the Form I-130, Petition for Alien Relative, and must refer petitioners instead to USCIS. 

b. If a consular section without a USCIS public counter presence encounters an exceptional circumstance case, then the Consular Chief, or another designated officer, must receive authorization from the regional USCIS Field Office Director (or his/her designee) prior to accepting and adjudicating the filing. Post should contact the appropriate USCIS field office by phone or e-mail, providing the specifics of the reason for the exception request. USCIS will have discretion to determine which cases can be processed using the exceptional circumstances procedures and which petitioners should be directed to file by mail with the USCIS lockbox in the United States. USCIS may authorize post to accept the case over the telephone in particularly emergent circumstances but will always communicate his or her decision via email to the post within 1-3 business days of receipt of the request for record-keeping purposes. 

c. The following are examples of the types of exceptional circumstances where consular officers should request exceptional authorization from USCIS to accept I-130 petitions: 

(1) U.S. Military deployment or transfer: A U.S. service member overseas 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. 
(2) 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. 
(3) Threats to personal safety: A petitioner or beneficiary is facing an imminent threat to personal safety. 
(4) Cases close to aging out: A beneficiary is within a few months of aging out of eligibility. 
(5) 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. 
(6) 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. 
(7) 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. 
(8) Other emergency situations, as determined by the Consular Section. 

d. Large-scale disrupting event: An event such as a natural disaster or widespread civil unrest that affects large numbers of people and creates a humanitarian emergency for U.S. citizens or residents living abroad that would call for a blanket authorization for posts to accept and process I-130 petitions. In these circumstances, only the Chief or Deputy Chief of the USCIS International Operations Division may give blanket authorization to accept filing and adjudicate Form I-130 petitions for a specified period of time.

A few changes to DOS / US Department of State NIV 212(d)(3)(A) waiver procedure: 

Beginning March 16, 2015, a visa must be issued within 90 days of receipt of an approved 212(d)(3)(A) waiver. INA 212(d)(3)(A) waivers are valid for the duration indicated by the ARO officer in the ARIS response. The waiver validity starts on the visa issuance date.(Source 9 FAM 40.301 N8)

See more at DOS website: http://www.state.gov/documents/organization/87150.pdf