Filing an I-130 Petition at a U.S. Consulate in Exceptional Circumstances

The U.S. Citizenship and Immigration Services (USCIS) and the U.S. Department of State (DOS) have a special, expedited I-130 form, petition for an alien relative, filing procedure for a U.S. citizen living abroad facing exceptional circumstances. In eligible situations, this procedure can help reduce the processing timelines typically experienced in such cases.

Circumstances When DOS Can Accept Consular Filed Petitions

I-130 petitions are typically filed with the USCIS in the United States. The DOS, however, has limited authority to accept and adjudicate a family-based petition for expedited processing when a standard expedite request with the USCIS will not suffice. Such authority is granted for an eligible petitioner facing exceptional circumstances and for certain blanket exceptions, such as the blanket military exception, as explained in the MurthyDotCom NewsBrief, Filing Options for Family of Military Personnel Stationed Abroad (11.May.2016).

Examples of Exceptional Circumstances

Exceptional circumstances can include a medical emergency, short notice of job relocation for the petitioner, or a threat to personal safety from civil unrest or a natural disaster in the foreign country. Additionally, certain immigration-related exceptional circumstances may qualify, including that of a beneficiary who is close to aging out of an immigration benefit or of a petitioner recently naturalized who must file a new I-130 for a derivative family member now excluded from a prior I-130 filed in a family-based preference category that allowed for derivative beneficiaries. This list is not exhaustive, and the DOS can consider other situations, depending on the particular facts of a case.

Eligibility Criteria for Filing at a U.S. Consulate

Only a U.S. citizen filing an I-130 petition for an immediate relative is eligible to file directly at a U.S. consulate when exceptional circumstances may apply. The DOS is not authorized to accept petitions from an individual who already has filed a petition with the USCIS for the same beneficiary or who is only filing with the DOS to avoid the standard USCIS I-130 processing times.

To be eligible, both the petitioner and the beneficiary must be physically present in the consular district. Although neither the petitioner nor the beneficiary is required to be a resident of the consular district, the DOS may consider the petitioner’s residence as a factor in determining whether to accept the filing.

I-130 Consular Filing Procedure

The petitioner must appear personally at the U.S. consulate with the original documents to file the petition. The beneficiary must be able to remain in the foreign country throughout the visa processing time. Before scheduling an appointment at a consulate, an individual should contact the particular U.S. consular post to inquire about any consulate-specific filing procedures. When the DOS is authorized to accept the I-130 petition, it may do so even if there is a USCIS presence in the particular country.

I-130 Must be Clearly Approvable

If the I-130 is filed with a U.S. consulate, bypassing review by the USCIS, it can only proceed if it is found to be clearly approvable. If the consular officer determines that the I-130 petition does not meet the clearly approvable standard, the I-130 must be forwarded to the appropriate USCIS service center or district office for standard adjudication.

Conclusion

Most I-130 petitions must be filed in the U.S. with the USCIS. However, in limited cases an individual facing exceptional circumstances may be able to file with the DOS at a U.S. consulate for expedited processing. If you are facing circumstances, you may wish to schedule a consultation with an attorney at the Murthy Law Firm who can advise and guide you on how best to proceed with your case.

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