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  • Article: Navigating the New Form I-129F By John Roth

    Navigating the New Form I-129F

    by


    Starting June 9, 2017, the U.S. Citizenship and Immigration Services (USCIS) will only accept the most recent 4/10/17 edition of Form I-129F, Petition for Alien Fiancé(e). The Form I-129F is used by American citizens seeking K-1 fiancé(e) visas for their foreign fiancé(e)s as well as by American citizens seeking K-3 visas for their foreign spouses. K-3 visas, however, have largely become obsolete in recent years, with only 119 K-3 petitions filed in fiscal year 2016, compared to 60,895 K-1 petitions filed during the same time period. [1]

    Here are the most significant changes to the form.

    G-325A No Longer Required . The I-129F no longer requires an associated Form G-325A (Biographic Information) for either the petitioner or the beneficiary. The merging of the two forms eliminates a long-standing redundancy in questions relating to birth dates, prior spouses, current employment and residence, among others, that appeared on both forms. Although the previous I-129F instructions indicated that the applicant need not reproduce on the G-325A the information that is provided on the I-129F, we suspect most applicants played it safe and fully filled out both forms. Now the USCIS has simply added the unique G-325A information - including information about the petitioner and beneficiary’s parents, previous addresses and previous employments – to the new Form I-129F, thus eliminating the need for G-325As in the fiancé(e) visa petition.

    Criminal History Disclosure Required . Since the passage of the International Marriage Broker Regulation Act (IMBRA), petitioners have been required to disclose criminal convictions for “specified crimes” such as domestic violence, sexual assault, child abuse, dating violence, elder assault, murder, rape, torture, three or more alcohol-related or drug-related convictions not arising from a single act, etc. Petitioners must also include police reports and court records relating to such crimes with the I-129F petition. The new Form I-129F expands the breadth of criminal history disclosures, and requires new documents to be submitted. Petitioners are now required to disclose not just convictions, but also arrests for IMBRA “specified crimes.” The 4/10/17 edition also includes a new question (Part 3, 4a) requiring disclosure of a broader range of offenses than IMBRA requires, asking whether the applicant has ”…ever been arrested, cited, charged, indicted, convicted, fined, or imprisoned for breaking or violating any law or ordinance in any country [emphasis supplied], excluding traffic violations (unless a traffic violation was alcohol- or drug-related or involved a fine of $500 or more)?” If answered in the affirmative, the Form requires disclosure of additional information regarding all arrests, citations, charges, indictments, etc.

    Under IMBRA, the Embassy must disclose the petitioner’s convictions of “specified crimes” to the foreign fiancé(e) during the consular interview. K-1 petitioners cannot be denied simply for having a criminal record, but if it is clear during the consular interview that the foreign fiancé(e) is unaware of the convictions, the consular officer can deny the visa based on a lack of a bona fide relationship between the couple. DHS has not yet stated whether consular officers will now disclose arrests, rather than just convictions, of these “specified crimes” to the foreign fiancé(e), nor has DHS commented on whether crimes disclosed under Part 3 question 4a that are not “specified crimes” will be disclosed to the foreign fiancé(e). Until we have greater clarity from DHS on this issue, practitioners will want to err on the side of caution and make sure the foreign fiancé(e) is aware of all crimes and arrests disclosed on the new Form I-129F.

    New Biographical Information Required . Part 4 of the new I-129F asks the American citizen to provide certain biographic information (ethnicity, race, height, weight, eye color and hair color) that was not previously requested on either the Form I-129F or Form G-325A. USCIS runs FBI criminal background checks on all petitioners and presumably the new biographic information will help the Service accurately identify the petitioner for purposes of these checks.

    Potential Biometrics Appointment . As part of the Petitioner’s Declaration and Certification on Part 5, USCIS now informs petitioners that they may be required to appear for an appointment to have their biometrics (fingerprints, photograph and/or signature) taken. In prior years, it was not uncommon for USCIS to request petitioners having a criminal history to attend a biometrics appointment at a local USCIS Application Support Center. We’ve observed that petitioners with multiple alcohol-related, drug-related and sexual assault-related convictions were required to attend biometrics appointments before USCIS adjudicated the petition. Whether USCIS will expand the number and scope of I-129F petitioners subject to biometrics appointments remains to be seen.

    Other New Questions . The new I-129F includes questions that were never asked by either the G-325A or earlier I-129Fs. These include the ages of the petitioner’s children under 18 years of age and all U.S. states and foreign countries resided in by the petitioner since age 18.

    New “Part 8. Additional Information .” The new Form I-129F, like previous versions, provides limited space for questions that often require multiple responses. For example, the form requires American and foreign fiancé(e)s to provide their last five years of residence and employment history, but only provides space for two residences and two employers. Other sections that provide limited space for answers are prior spouses of American and foreign fiancé(e)s, and children of foreign fiancé(e)s. Previously filers were instructed to add “continuation sheets” to provide information for which there was not sufficient space on the form. No format was specified by the USCIS for the continuation sheets, and we can infer from the new form that this occasionally led to confusion for examiners trying to decide which questions were being modified by the information on the continuation sheet. The 4/10/17 edition of the Form I-129F includes a page to handle information for which space is not sufficient in the main body of the form. Now Part 8. Additional Information (last part) of the new Form I-129F is the designated “continuation sheet” that requires the filer to write in the Page Number, Part Number, and Item Number for which the additional information is being provided.

    “Easy-to-Use” Format . USCIS has designed the new Form I-129F as an “easy-to-use” form which includes a 2-column Adobe fillable format and prevents the input of certain incorrect responses to questions. Some USCIS “easy-to-use” forms (I-102, I-601 and I-140) include informational pop-up boxes to provide guidance to applicants for answering specific questions. The new Form I-129F does not yet incorporate such informational pop-up boxes.

    Confusing Organization . All recent editions of the Form I-129F, including the 4/10/17 edition, start with “Part 1. Information About You,” followed by “Part 2. Information About Your Beneficiary,” where questions relating to the respective parties were grouped. Part 3 of the soon-to-be-outdated form begins Part 3 with questions about whether the petitioner is currently serving in the “Armed Forces of the United States,” thereby signaling to the applicant that the subject of questions has shifted back to the petitioner. The new form Part 3, on the other hand, starts with criminal history issues that could apply to either the petitioner or the beneficiary, making the subject of the questions in Part 3 unclear. Making the matter worse, the immediately following Part 4 asks questions about ethnicity, height, race, and physical characteristics that also could equally apply to petitioner or beneficiary.

    Another organizational weakness of the newest Form I-129F is that it does not clearly delineate the sections. For example, in between the section entitled “Information About Your Parents” and “Your Citizenship Information” on page 3, the form asks “Have you ever been previously married?” (question 37) and allots space for one prior spouse. An additional section header would make the section easier to locate and draw attention to the importance of this question. Another example can be found in the transition from “Additional Information” to “Part 2. Information About Your Beneficiary” on page 4, where the form switches from asking the American citizen about any prior Form I-129F filing to asking whether the American citizen has any children under 18 years of age, followed by a question asking the American citizen to provide all U.S. states and foreign countries resided in since your 18th birthday.” The questions regarding the minor children and U.S. states and foreign countries were not asked on the older editions of Form I-129F and appears to be randomly added to his current location without any emphasis on their importance. USCIS should probably have added additional headers to help applicants avoid overlooking these questions.

    DISCUSSION

    The USCIS has not commented yet on the reasoning behind the changes in the Form I-129F, so we are left to infer as best we can the Service’s purposes.

    It is clear that the new form expands the scope of information required of the petitioner, requiring disclosure of all states and foreign countries resided in since age 18, as well as requiring greater physical information to help identify the petitioner, and it now requires the disclosure of all arrests for all laws violated in any country. All this information has long been required of the fiancé(e)s during NVC and consular processing, but since the petitioner was never scrutinized in the past during these latter stages, this information had been absent from the complete record of the case. This broader reach for information from the petitioner may well be a reaction to the threat of homegrown terrorism, as in the case of the San Bernardino bombers, where a radicalized U.S. citizen invited his Pakistani-born fiancée to the U.S., which ultimately led to the death of 14 Americans and serious injury to 22 others.

    The failure of the USCIS to make the new form truly easy-to-use is disappointing. The form has grown from six pages in length to 13 pages in length, with inadequate header information and poor transitions from section to section. Do the criminal history questions in Part 3 and the physical characteristics questions in Part 4 apply to the petitioner or the beneficiary? It’s not clear upon first inspection. Informational pop-ups might have been particularly helpful here, but they were not included in the latest edition. Lawyers will figure this all out in the end, but will the average self-filer (of which there are tens of thousands every year)? Expect mistakes, USCIS.



    [1] U.S. Department of State, Fiscal Year 2016 Nonimmigrant Worldwide Issuance and Refusal Data by Visa Category, https://travel.state.gov/content/dam...saCategory.pdf


    About The Author

    Mona Shah, Esq. John Roth is a 1983 graduate of the University of Pennsylvania Law School and the Wharton School of Finance. He has split his career between the law and entrepreneurial business ventures around the world. He has been an immigration attorney and member of the American Immigration Lawyers Association since 1995.John began to increasingly focus his immigration law practice on the EB-5 visa field in early 2008. At that time, there were only 24 approved regional centers, and only a handful of them were active. Seeing a need for professional, independent advice to help EB-5 investors select a suitable EB-5 project, in 2010 he passed the rigorous Series 7 and Series 63 exams to become a FINRA licensed registered representative of a broker-dealer firm. Because the issues of immigration law, finance and securities overlap and are interdependent in so many ways when conducting EB-5 due diligence, John has sought to acquire as broad as possible an understanding of the various sub-fields in the EB-5 world. He has spoken at numerous EB-5 industry events and has published several articles on the legal, financial and securities law aspects of EB-5 project due diligence.


    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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