U.S. citizen Bob has been working for an international conglomerate in China for several years. During this time, he married someone local, a Chinese national who has no status or any history with the U.S. One day, the Bob’s employer suddenly sent him a notice to transfer back to U.S. How can bob make sure his spouse can follow him back to the U.S. on such a short notice?
If you are at all familiar with the American immigration system, you’ll see the problem. Family petitions are lengthy affairs that involve multiple stages of applications. If Bob petitions for his wife through the usual channels, they may be separated for a year-and-a-half or more before she becomes a permanent resident. Bob’s wife may visit the U.S. during this process, but she almost certainly will run into questions by customs agent during each entry. They have to maintain two households – one in the US and one abroad. If they have kids, where will the kids live? What an absolute nightmare!
What if I tell you there is a shortcut? This option is called “exceptional circumstances filing.” With it, eligible petitioners may file the I-130 form directly with a U.S. consulate, avoiding lengthy processing at USCIS.
Exceptional circumstances filing is not the perfect option. It’s highly situational with strict requirements. It is up to the discretion of each U.S. consulate to process, which means not all consulates do it. Each consulate may have different procedures that are not at all transparent. However, if Bob, his wife, and their lawyer are willing to do some extra work, they can potentially reduce the processing time down to just a couple of months. Let’s find out how, first by covering the general requirements for the process.
Eligibility
Like its name suggests, exceptional circumstances filings are reserved for circumstances that are exceptional. Bob’s situation qualifies – he is transferred by his employer back into the U.S. on short notice. Similarly, a U.S. military member being transferred to anywhere else in the world on short notice may also file so that his family may live in the U.S. Other exceptional circumstances include medical emergencies or threat to the safety of either the petitioner or their spouse, adoption where the petitioner has imminent need to return to the U.S., or if the beneficiary is close to aging out of being eligible for a family petition.
The Foreign Affairs Manual specifically spells out the above as qualifying exceptional circumstances. Additionally, the manual also includes a “catch all” provision. Consulates can evaluate on a case-by-case basis to determine if circumstances are truly exceptional so as to justify the filing. Here are some that I think could qualify. Death of a family member that requires the petitioner to return to the U.S. for lengthy period of time to manage estate. Sudden and critical change in the petitioner’s business, which requires petitioner to return and personally manage the crisis. Family member falling ill, which requires the petitioner’s return to provide care.
The consulate’s discretion is key here. Because the consulate has broad authority to decide what is an exceptional circumstance, it may be advantageous to attempt direct filing at the consulate if the circumstances seem eligible.
Cannot Have Filed I-130 w/ USCIS
Before making an exceptional circumstances filing, petitioner could not have made a filing with USCIS first. If an I-130 form is already pending, and circumstances changed, one might be better off just to request expedited processing.
Clearly Approvable
Consulate may only approve filings that are clearly approvable. The petitioner must establish by preponderance of the evidence that their qualifying relationship with the beneficiary is real. Preponderance of the evidence standard is similarly used by USCIS, but we can expect most consulates to apply this standard conservatively.
A couple who have been married for several years, have loads of document showing confluence of their lives and finance, and two children together will easily meet this standard. On the other hand, if the couple have only been married for a couple of months, have nearly nothing to show confluence of life and finance, no children or pregnancies to speak of will likely not have their direct filing approved. In those cases, the consulate will forward the I-130 petition to USCIS instead.
Physical Presence
Both the petitioner and beneficiary must be physically present in the consulate’s district during at least part of the process. The petitioner must personally attend the I-130 interview. While FAM’s language requires the beneficiary stay in the consulate’s district until the end of the process, my personal experience is that shorts international travels don’t end the process so long as the beneficiary can attend health exam and interview.
It’s worth being mindful of the spirit of exceptional circumstances filing here. The idea is that both petitioner and beneficiary are based in the foreign country when circumstances force them to make the filing. This is not a process meant to be abused by petitioners based in the U.S. In fact, the FAM strictly forbids this.
Process
Now that we’ve gone through the basic requirements, let’s talk about the process.
Exceptional circumstances filings start with getting in contact with the consulate staff responsible. This is a surprisingly difficult task, because consulate operations are opaque and vary from post to post. Exceptional circumstances filings are exactly common. Sure, State Department websites provides a bevy of contact information, but those aren’t necessarily helpful. Some consulates, like the Embassy in London, have an accessible online request form. Other consulates, not so much.
Eventually, the immigration attorney might finally nail down the right phone number or email address after speaking with numerous colleagues and reaching out to various parts of the consulate. With the right contact information in hand, the attorney can then make an informal request, just hoping the consulate can process the filing.
If the consulate can process, it will want an explanation of the circumstance to assess whether a direct filing is justified. This explanation should be detailed yet concise. Petitioner should prepare documents evidencing the circumstance in advance, in case the consulate requests for them.
If the consulate determines that direct filing is appropriate, it will schedule an interview with the petitioner, where the petitioner will submit form I-130 and all of its supporting documents. The petitioner will speak about his relationship with the beneficiary and the exceptional circumstances. They should be notified of the I-130 result at the end of the interview.
Once the consulate determines that the petition is clearly approvable, it will direct the beneficiary to submit a DS-260 visa application form. This is done on State Department’s CEAC website. The beneficiary might be asked to visit the consulate’s online appointment system, and select a visa pickup method in case the application is approved. Depending on the consulate’s particular practice, beneficiary might also be asked to perform a few other tasks.
Then, beneficiary will be scheduled for health exam and interview at the consulate. Similar to the petitioner, beneficiary will be asked to bring a specified list of documents to the interview. Once the health exam and interview are complete, beneficiary should be notified whether the case is approved. The passport with visa stamped would be delivered.
I should stress that process of this filing is not standardized. Petitioners, beneficiaries, and their attorney may need to perform the steps above in different timeline and order. Methods of submitting documents may differ. Time taken for interviews may differ. It’s important to remain flexible and consider all these consular variables as tradeoffs for shorter processing time.
Caution on Limits
Only U.S. citizens petitioning for immediate relatives may attempt exceptional circumstances filing.
Exceptional circumstances filings do not excuse issues of inadmissibility for the beneficiary. If the beneficiary has history of overstaying in the U.S., misrepresentation, or criminal issues, these will all need to be addressed as with any normal immigrant visa case. As always, it is important to screen those issues with the attorney before committing to the application process.
From experience, many family petition case clients tend to take time to gather the required documents. We don’t have that same luxury in exceptional circumstances filings. Assuming consulate will move forward, everything must be prepared to a short timeline. That means additional work to make sure the filings are ready.
Some Final Thoughts
We recently had the pleasure of concluding an exceptional circumstances filing for a client couple from China. This was a laborious and time-consuming case involving a lot of correspondences with the consulate in Guangzhou, but it was very rewarding. My clients are happy because what would have been an 18 month case was reduced down to 4 months – from consultation to visa issuance. I’m happy because I won’t have to worry for them for that same amount of time. If you find yourself in a situation that might warrant an exceptional circumstances filing, please reach out. I’m always happy to help.
Shiao PLLC is an immigration law firm based in Washington, D.C. We emphasize honesty and thoroughness to deliver the best results for our clients. If you need immigration help, contact us.