DELAWARE IMMIGRATION LAWYER BLOG

WASHINGTON – U.S. Citizenship and Immigration Services (USCIS) announced a change in filing location instructions and addresses for the Petition for Alien Fiancé(e) (Form I-129F). The new instructions, dated 6/14/10, are part of an overall effort to transition the intake of forms from Service Centers to USCIS Lockbox facilities. Centralizing form and fee intake to a Lockbox environment allows USCIS to provide customers with more efficient and effective initial processing of applications/petitions
and fees.

Beginning Aug. 3, 2010 all Form I-129F petitions being filed by a U.S. citizen on behalf of a fiancé(e) or spouse must be submitted to the USCIS Dallas Lockbox facility.

Detailed guidance can be found in the updated Form I-129F instructions online at www.uscis.gov (click
on the Forms tab).

Conditional resident aliens are required to file a Form I-751 within 90 days before the second anniversary of the date on which the alien obtained permanent resident. If the marriage is terminated by divorce, the resident alien can file a waiver of the joint petition requirement. However, if the divorce is filed but not finalized before filing of I-751, the conditional resident is not allowed to apply for the waiver based on good faith marriage. In this case, the conditional resident can still file a joint I-751 if the spouse is willing to cooperate. Otherwise, the conditional resident has to file a waiver under other grounds and then amend the application or file under a waiver once the divorce is final. Other grounds for waiver include (1) The marriage was entered into in good faith, but the conditional resident has been battered or subjected to extreme cruelty by the citizen spouse; or (2) Termination of permanent residency and deportation would result in extreme hardship.

Many petitioners after the filing of I-130 for their foreign spouses choose to file an I-129F so that their spouses can get a K3 visa to enter the U.S. to await the approval of the previously filed I-130. Normally, the I-129F petition will be approved before the I-130 petition. However, sometimes, before the foreign spouse’s K3 interview, the I-130 is approved. If the I-130 petition has been approved and received at the consular post, a K-3 visa will not be issued. If the foreign spouse begins the K3 process at the post by returning the DS-2001 thereby notifying the post they are ready to be interviewed, she or he may opt to continue the K3 process even if the approved I-130 has arrived at the post.

USCIS recently announced revised filing instructions and addresses for filing several forms, including Form I-765 (Application for Employment Authorization), and I-485 (Application to Register Permanent Residence or Adjust Status). To download most recent forms, please visit www.uscis.gov.

If a Permanent Resident is out of U.S. continuously for more than one year, DHS takes the position that residency has been abandoned. The criteria in determining whether a LPR abandons his residency include purpose of departure, existence of fixed termination date for visit abroad, and objective intention to return to U.S. as place of permanent employment or actual home.

When a Permanent Resident seeks to be out of U.S. for more than one year, he must apply for a re-entry permit (Form I-131). However, possession of re-entry permit does not prevent DHS from inquiring as to whether holder abandoned his residency. It simply prevents the DHS from relying solely on the duration of the holder’s absence as a basis to determine abandonment.

When applying for citizenship, one must show a continuous resident subsequent to LPR status. An absence between 6 months and 1 year raises a rebuttable presumption that continuity of residence has been interrupted. With certain statutory exemptions, an absence of 1 year or more shall disrupt the continuity of residence.

Employees who work for the U.S. government, an American research institute, a U.S. firm engaged in the development of foreign trade and commerce, or a public international organization of which the U.S. is a member can file form N-470 to preserve their residency for naturalization purpose. N-470 is not a re-entry permit.