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Family-Relative Immigration Taking Too Long

The Intolerable Delay for Relative Petitions

I recently met with a prospective client.  The facts were not unusual: she was 35 years old, a U.S. citizen who is, and has been, living abroad, and she met somebody she wishes to marry.  With this decision comes a host of other major life decisions: how to introduce her fiancé to her family, when and where to get married, and when and where to begin a family.  These are choices that many, if not most of us, experienced in our 20s and 30s; it is part of the human experience.  But when each half of a soon-to-be-wed couple is from a different country, there are additional considerations of immigration laws and processing that must be taken into account.

We reviewed the options: a fiancé visa if she wishes to be married in the U.S., or a relative petition and an immigrant visa application following a wedding abroad.  For the latter option, there is the legislative provision for a K-3 visa if the processing is going to take a long time.  However, USCIS has eviscerated this provision by insisting on adjudicating the K-3 petition simultaneously with the relative petition.

The discussion naturally turned to processing times.  I had to explain that it was absolutely unknown.  Right now, relative petitions are taking close to — maybe more than — a year.  K-3 petitions may or may not be available.  I still don’t understand the benefit of a K-3 petition since if USCIS is going to adjudicate the K-3 petition, why not simply approve the relative petition?  It appears that USCIS agrees, but rather than approving the relative petition in a timely manner, it doesn’t adjudicate either until an unknowable period of time has passed.

It is, of course, close to impossible to plan a wedding based upon a fiancé petition.  There is a 90-day window for the wedding, and the timing of that window cannot be known in advance.  By the time it is known, there is insufficient time to find a venue, hire a caterer, send invitations, and plan a celebratory wedding.  It is simply not possible.

Then, of course, my client wanted to consider the timing to start a family.  She would like to have a baby in the United States, where she is more comfortable with the medical care, and has the support of family.  But she naturally wants her husband to be a part of that experience.  After all, it will be his child as well.  The biological clock is ticking and family planning issues are a major consideration.

Oh yes, the fiancé lives in an Islamic country.  We don’t discriminate based upon religion, of course — this is America.  Except I am required to advise this client that “administrative processing” might be a phrase in their future.  If so, “administrative processing” based upon the non-discriminatory security checks may delay her husband’s entry to the United States by anywhere from 2 weeks to a year or longer.  This makes it more difficult to plan.  No, let’s be honest, it’s not more difficult, it’s impossible.  Of course, since he has been denied a visitor’s visa based upon section 214(b), there is no hope that he may be able to come to the U.S. temporarily to share in the birth of a child, and then return to his home country to wait for the immigrant visa.

So I find myself discussing the timing of a pregnancy with my client.  Should she wait to get pregnant or get pregnant before getting married if they are going to apply for a fiancé visa? (This was not acceptable to the client.)  She is 35 years old, so the question shifted to what if she has trouble getting pregnant?  Should she start now? If a child does come along, what happens to the process to bring her husband to the U.S.?  Will he miss the first year or more of the child’s life?

Then I get angry.  She should not have to discuss all of this with her immigration lawyer– these are issues best discussed with her obstetrician and family if she chooses.  Yet our dysfunctional immigration system makes it an immigration issue.  It should not be an immigration issue, and to make it an immigration issue is just plain wrong.

USCIS appears to have put immediate relative petitions on hold.  There is a heavy case load, we are told, and yet they still collect a $420 filing fee to adjudicate each petition.  We are told that the fee, which has increased fourfold in the last 20 years (more than 300 percent higher than the cost of living increase[1]) is because the fee pays for the service and permits better service.  Twenty years ago a relative petition took weeks to adjudicate.  Now?  Now it takes years.

It seems that USCIS owes the American citizens it purports to serve an explanation.  And following the explanation, an apology, and a plan to correct this injustice is the least that should be done.  To paraphrase, justice delayed does indeed create injustice.

Written by Rob Cohen, Vice Chair, American Immigration Lawyers Association – USCIS Liaison Committee

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