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David H. Stoller

David Stoller’s Answers

186 total

  • Need information on the Immigration implication of my DUI case at Visa Interview.

    I was arrested for DUI and was later released with a delayed booking form, but I never booked as my attorney asked me to wait until arraignment. I just got a letter from DA's office that there are not filing charges. Now I'm going for my Visa Stam...

    David’s Answer

    Thanks for your inquiry. The best advice is to not rely on my advice. Rather, you should spend the time and resources to speak with a qualified attorney who can review more than your brief description of the events relating to your arrest. While we all recognize that the forum on Avvo is good way to discuss immigration matters, nothing can substitute for actual advice provided by an actual attorney actually hired to handle the review of your case.

    With that said, a straight forward DUI is not going to generally render you inadmissible to the US. When the applications ask if you have ever been arrested, you shall state that you have been. That answer is then going to likely result in a request for paperwork and while you indicate that there is not paperwork, then you should be able to produce evidence either from the law enforcement agency which effectuated the arrest or the court in which the charges would have been brought indicating that there is nothing on record.

    Often times we get the question that you ask AFTER the applicant has attempted to obfuscate the correct answer with some kind of lame exercise of circularity - in other words after the applicant has already said she was not arrested because she did not understand the question or something else like one of those answers that make no sense. Keep in mind that you have an H-1B which has been approved for you and a consular officer is going to rightfully assume that basic legal words are well understood. So always always always (did I say ALWAYS) just tell the truth.

    DUI's are generally not considered as crimes involving moral turpitude (CIMT's) unless there is some type of property damage or personal injury caused as a result of the incident - and even then the offense may or may not be considered a CIMT. Rather, DUI's are usually seen as "regulatory" offenses and these will not generally subject a foreign national to being rendered inadmissible to the US.

    One of the places where a DUI can cause issues is with regards to §212(a)(1) of the Immigration and Nationality Act dealing with medical conditions. The Act provides that individuals who have engaged in behavior which may result in a danger to the community can be rendered inadmissible on medical grounds. Yes, it sounds a little far fetched but I have seen it happen before. Usually the medical condition issue only comes to light if there is a long or frequent history of drug abuse or alcoholism and generally not when there is one isolated incident. Nonetheless, consideration of the circumstances surrounding the incident can lead to a Consular Officer's mind wandering off the beaten path and when that happens there can be trouble.

    So from this end I can only talk about generalities, not about specifics. This is why it is imperative that you consult with someone who can review what you have and provide a realistic assessment based on what is actually there. Records are likely available - even if it is the lack of a record. But like I said above, if you indicate that you have been arrested you should be prepared to document that as best you can.

    I would rate this as a low probability for trouble, but there is the possibility that this problem can cause a concern. And I am not sure if you have informed your employer about this, but I would recommend that you do. DUI's can cause a significant amount of damage and when a consular officer is figuring out whether or not to provide you a visa, the fact that you were pulled over is going to be considered. It will likely not lead to a denial, but you should be prepared to respond with both paperwork and legal argument is required. Likewise, the possibility of there being a delay in your return should be something that you communicate with your employer.

    Do not let the officer believe that you are hiding everything. The more open you are with what you present, the more likely the office will trust you and approve your request. Good luck.

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  • I am a U.S citizen and my partner is illegal was deported, we have 2 kids in common. not married.Will he be able to fix paper ??

    We plan to marry. the kids and i already visit him frequently in Mexico and we have been doing this for a period of 3 years.

    David’s Answer

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    Thanks for your inquiry. The best advice would be to consult with an experienced attorney who is not going to steal you blind and who will advise you about the important developments in the law with regards to the situation you have presented.

    The problem is that it sound like your significant other spent a significant period of time in the US without lawful status. So when he was deported and removed, he like triggered a ten year bar which prevents foreign nationals from returning to the US for a period of ten years as a result of having accrued a period of one year or more of "unlawful presence" here in the US. Likewise, there would be a ten year bar that would apply to him as a result of having been deported from the US.

    Both of these bars have solutions, commonly referred to as "waivers." A waiver would be available if you were to get married and may be available if you do not get married but instead decide to do this as a fiance visa. I think that my general recommendation would be to get married, it just makes it easier.

    Currently, the process of applying for these waivers is going through some changes. These changes, however, have not fully been implemented and we are actually in a period of transition from the old system to a newer (hopefully less complicated) system. The old system was that your significant other would appear for an appointment at the US Consular Office (USCON) where his application for a visa would be denied (keep in mind that prior to getting this appointment, there would be a requirement of filing applications for the approval of a visa through Citizenship and Immigration Services (CIS) here in the US).

    When the visa is denied, your significant other could apply for the waivers and that application would be sent from the USCON to the CIS office abroad which would then make a determination on whether the visa would be issued. The process took forever and no one knew how long their loved one would spend outside of the US waiting for the requested waivers to be adjudicated. While the approval rates were high (especially through Mexico), it took forever).

    The process that is being transitioned to is one where the waiver applications would be filed here in the US. This way, the loved one would know what they are going to receive when they go to the USCON and this in turn was aimed at making the waiting periods shorter. Currently, there is a process of transition going on with these applications and the system of adjudicating the waiver applications will depend on the system that is in place when you are ready to submit the applications to CIS.

    So the issues that your significant other has are fixable, but I would highly recommend spending the time and the money on hiring someone who is reputable and has experience handling these matters. There are a lot of folks out there making all sorts of promises, many of which are untrue and which will end up with nothing more than funds being spent on services that will lead nowhere. I do not mean to give a negative description of those of us out there in the business, but with this period of transition there has been lots of BS out there and you really need to be careful.

    Reputable attorneys are folks who can verify that they are licensed. They are folks who have a real office. They are attorneys ho are not afraid to speak with you and who will answer your questions. The decision on who you hire is always up to you, never feel like you are being forced into anything. There are solutions out there for the situation that you have discussed and it is imperative that you find someone who can do what needs to be done in this case.

    Keep in mind as well that this advice is based on what you have shared. If there are other concerns in this case (i.e. criminal convictions or more frequent immigration violations), the answer I have provided may not be all that correct. Open up with the attorney you choose and tell him/her everything. Good luck

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  • My Priority date=28 September 2001 Case i-130 Category F4 Cleared medical test and immigration interview.on 10 December 2010

    When my priority date will be current? visa bulletin for F4 is going too slow for rest of the world.m in Pakistan. At the start of the new fiscal year why they are too slow.While they have receive the new quota. In this current fiscal year of ...

    David’s Answer

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    Thanks for your inquiry. And while I understand full well the frustration, there is not a thing that any of us can do about it. This category of visas is really difficult because the current visa date jumped all the way forward to January 2002 and then retrogressed about two years in the matter of one month. Slowly but surely, the F4 category has moved forward - but very very slowly.

    Problem here is that the National Visa Center (NVC) and the US Consular Office (USCON) will each begin processing cases well ahead of the visa date becoming current. And when an applicant receives notice that the NVC or the USCON or moving forward, applicants get excited and think that it is a sure thing that their visa issuance is right around the corner. Not necessarily so.

    The USCON (and CIS) will not approve a case unless a visa is available at the time the case is approved and through the time it takes the applicant to travel to the US. All of the starts MUST line up in order for things to be completed as planned and in this case the visa demand far outstripped supply and this is why you are sitting there waiting.

    The best advice that I can provide is that you should keep the USCON updated on any address changes or telephone number changes. The USCON will have a need to get a hold of you to complete the process which you have started and you want to absolutely make sure that the USCON can get a hold of you when it needs to do so.

    As to how long it will take, I cannot tell you. We did hope that the new allocation of FY 2013 visas would lead to the priority dates moving ahead a little more quickly. But with the October and November Visa Bulletins having been released, this did not happen. So hang in there and keep your fingers crossed hoping for rapid movement in this category. Wish I could give you a better idea, but I am as lost as you are. Good luck.

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  • I accidentally applying for green card program that turn out as a scam more likely as a set up by the immigration offices,

    They had all my files including all the address and my SSN I was just wondering if they would make a visit to my house, I have 2 kids thy born here and also a wife that have a same situation as me! We both from indonesia came to the state with j1 ...

    David’s Answer

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    Thanks for your inquiry. I would recommend that you discuss your case with an experienced immigration attorney and that you do that now. While I am not here to scare you, my job is to inform you and part of that information would be that you could be placed in removal proceedings if your applications are part of a larger investigation.

    At this point it is somewhat difficult to give you an idea of what may or may not happen because I do not know what you submitted and to whom it was submitted. Surprisingly, I have seen much more in the way of people being scammed since I entered private practice than I ever saw when I was working for the INS. And in my time in private practice I have seen many scams operated by both sophisticated and unsophisticated scam artists.

    The best way to figure out what can happen or what may happen is to sit with an attorney who can work through these issues with you. The most problematic thing I see here is that if applications were actually sent to Citizenship and Immigration Services, those applications will at some point be reviewed. And if those applications are at some point reviewed, they could be denied and the denials my then lead to you and your spouse being placed in proceedings before a US Immigration Judge.

    Sometimes, we have been able to take individuals in a situation like yours and approach the authorities with the problems that you encountered and see if you may be eligible to receive some assistance from the government in return for your part in an investigation. But again whether this can or cannot happen really depends on the circumstances of your case.

    From what I can see, both you and your spouse have violated the terms of your visas by not departing the US when your programs on the J-1 visas ended. And while the Department of Homeland Security may not know who you are and where you are right now, you want to be ready if the Department figures it out through a bogus application that you submitted.

    Be careful about who you choose to help you in a case like this. There are many attorneys who will classify themselves as immigration attorneys who have absolutely no idea how to back track a scam and how to figure out why things were done the way they were done. A good attorney should be able to ask the right questions to figure out the operation and to give you a plan forward. Getting ahead of a potential problem is the best advice that I could provide to you at this time.

    And while no one wants to profit from the trouble that you have endured, there is a situation in which you find yourselves and you are much better trying to make an informed decision as to whether something can or should be done rather than hoping that no one will realize there is a problem and just leaving it alone.

    I am in the Orlando area and I would welcome an opportunity to review the matter with you. Be careful out there, make good choices and find a good attorney who is there to answer question, to provide guidance and to help. Good luck.

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  • H4 221(g) green slip Mumbai. New H4 Application possible?

    My wife's H4 is under 221g administrative processing. Can she apply again with a fresh H4 application.

    David’s Answer

    Thanks for your inquiry. While I would agree with my colleague that the result on a new application would be the same as it was before, that does not mean that you cannot move forward with a new application if you believe that you have evidence to overcome the grounds of denial of the prior application.

    As a general rule, the US Consular Office (USCON) will deny the issuance of a nonimmigrant visa is it believes that the applicant cannot establish that the applicant is not inadmissible from the US. Keep in mind that every applicant for any type of visa through the USCON is presumed to be coming to the US as an immigrant. Meaning that every single nonimmigrant visa application is reviewed to determine whether there is evidence in the application or paperwork submitted therewith that the applicant plans on abandoning their foreign residence in favor of setting roots down in the US.

    So there is something in the prior application which is giving the officer at the USCON some idea to believe that your spouse is ineligible to receive a visa. Rather than submitting a new application asking for the same result, why not figure out what the concern may be and then try to find a solution to the problem? Certainly we all want to handle things as expeditiously as possible, but there has to be something in the processing of the application which has resulted in the §221(g) denial.

    If you are an H-1B I am not sure why there would be an "intending immigrant" denial on the H-4 out at the USCON. First, your work on the H-B should be sufficient to overcome concerns that your spouse will not have financial support. And also, dual intent is recognized on H-1B's/H-4's such that there should not be a prohibition on the issuance of a visa for fear that either you or your spouse want to remain in the US permanently.

    Listen, I am not a case agent but it would appear to me that there is something more to the problem than your inquiry is discussing. So to the extent that there is something that you do not want to post on a public forum, a good immigration attorney would be able to consult with you and discuss possible solutions. And I think that this would be the best recommendation to you. Speak with someone with expertise in this area who can listen to the concerns and who can come up with a strategy on how to overcome the issues which are raised.

    Good luck.

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  • DHS in San Diego put me in deportation proceedings due violation of immigration law. Is it possible to cancel my deportation?

    I was admitted to the U.S. as a J-1 student in June 1, 2012. My job offer in LA turn out to be a fraud and i was forced to search job in my own, sponsor of my visa did not provide me with any help and only rushed me in this process. I got to San D...

    David’s Answer

    Thanks for your inquiry. You have a mess and I would definitely suggest that you visit an immigration attorney who can assist you with your case. From your description of the circumstances, looks like you got screwed by the J-1 program that you used to come to the US. Problem is that when something like this happens you should either leave the US or make attempts to find employment and only work once you have made the appropriate requests to change your status consistent with the new employment.

    A J-1 visa will generally require you to work with the employer that hired you on the J-1. And while there are many different programs that foreign nationals can employ to obtain a J-1 visa, this is not the type of situation where you can go from one employer to another simply because things did not work out for the employer who initially sponsored you. Looks like you learned that the hard way.

    From what I can see, you have been charged with violating the terms of your status in accordance with §237(a)(1)(C)(i) of the Immigration and Nationality Act. And from what I can tell, the facts of the case would provide support to the government's charge that you did indeed violate the terms of your status. Yes I understand that you did so only after you receive a bad deal on the J-1, but the bad deal that you received does not provide a mechanism by which you can turn around and accept employment in a manner inconsistent with the visa that you used to come to the US.

    On the change of status to F-1, you are going to run into problems. While the submission of the change of status would provide you authorization to remain in the US pending a decision on that application, it does not automatically protect you from being placed in removal proceedings based on the prior violation of status.

    Additionally, the fact that your case has been sent to see the Immigration Judge may result in Citizenship and Immigration Services (CIS) concluding that you are not eligible for a change of status. Now being arrested by the immigration authorities does not necessarily mean that you have been placed in removal proceedings. Rather, the formal charges which would appear to have been lodged against you would have to be filed with the local Immigration Court before you can be deemed to have had a case instituted before the Executive Office for Immigration Review (Immigration Court and Board of Immigration Appeals).

    There are a number of ways out of this, but it would seem to me that none of them are a sure bet. You could ask the authorities to hold off filing the charges against you (e.g. hold of on filing the Notice to Appear) with the Immigration Court). The hope would be that if you are in a position to have the authorities hold of on filing the NTA, perhaps you can convince CIS to do the right thing and exercise its discretion and place you back in status with your requested change to a student visa.

    Alternatively, you could consider accepting voluntary departure from the US and attempting to resolve the problem by seeking the issuance of a student visa through a US Consular Office abroad. This will have its fair share of concerns because the US Consulate may be wary of issuing another visa to you in light of the problems that happened previously. Yes I understand that it would not appear that you were at fault, but Consular Officers do not believe that anyone will do what they say they will do and when there is some prior history to suggest that this is true, the doubt is even more pronounced.

    If you find the right attorney, you my be able to find a solution to this. But you are in a web whereby you may not be able to fix this problem here in the US. CIS may not adjudicate the request for change of status because you are in Court. The government attorneys in Court may not be willing to give up because of the charges of violation of status. So you are between a rock and a hard place. Find a good attorney. Good luck.

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  • When ice picks up the inmate is it log before there deported i they sign the deportation papers right away?

    My brother is in rikers and he is already sentenced and did a year. He is currently waiting for the state to pick him up. He is an illegal immigrant. How long does ice take to pick him up from there? And how log before he gets deported?!

    David’s Answer

    Thanks for your inquiry. While the process may differ from location to location, here is a rough idea of what happens. I am assuming that your brother has not yet been brought before a US Immigration Judge (IJ) and that he will need such a hearing before he is ordered deported. Alternatively, there is the possibility that someone can be administratively deported - meaning that an appearance before an IJ is not required. And there is also the possibility that someone who is subject to deportation can stipulate to an order of removal and deportation being issued against him. As a general rule, an order of removal (whether before an IJ or accomplished through the administrative deportation process) must be in hand before ICE will remove the individual from the US.

    Again depending on the place where your brother is currently incarcerated, he may be processed for removal while he is serving his time in the State prison. One of the jobs that I had when I worked at the INS is to represent the federal government in proceedings that were held before IJ's who would obtain cases from State prisons and country jails throughout Florida. The idea being that by the time the sentence is served, the foreign national will know if they are staying or are being deported.

    At some point, a hold should be placed against your brother. The hold is the same thing as an immigration detainer. This is an indication by the immigration authorities that they will assume custody over your brother when his time with the State or County is completed. If a hold is not lodged, your brother could be released by the State following his completion of the sentence imposed. Here in Florida, almost every foreign national who is spending time in the State prison system is identified such that no one falls through the cracks.

    Once ICE assumes custody, your brother will be taken to a detention center where his case will be disposed of depending on what needs to be done. If he needs to appear before an IJ, a hearing will be scheduled. If he needs to be deported because he has been ordered removed, ICE will take steps to secure travel documents and to effectuate the order of removal.

    In some cases, and depending upon procedures at different Field Offices, ICE will agree to deport someone prior to his sentence expiring with the understanding that if the individual returns to the US, the portion of the sentence which was avoided will be served AND the individual will be processed in the federal court system for the criminal offense of re-ntering the US without permission to do so. And depending on the sentence which got your brother in trouble this time around, he could be looking at spending years in prison simply be returning to the US without first seeking permission to do so.

    There are not a lot of ways out in situations like this. I know that here in Florida sentences to the State prison system are almost assuredly going to result in removal and deportation. Every once in a while we come across cases where something can be done but those situations are very few and very far between.

    If you are looking to have your bother removed ASAP, contact the staff at the prison where your brother will be staying and they should be able to put him in touch with the local ICE office that will handle his case. ICE is generally willing to listen to individuals who want nothing more than to be removed and sometimes I have been hired to make that part of the process happen as quickly as possible.

    Either way, I would recommend a visit to an attorney to at least consult about the case. Truth is that whatever is going to happen is going to occur with out without an attorney. With that said, attorneys can help to make events occur that much quicker and assist in effectuating a plan to bring about whatever result a client is looking to obtain. Hope this helps. Good luck.

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  • What is the quickest way to join my US fiance and live with him in the US?

    I have just returned to the UK after a 3 week stay in California with my first love of 28 years ago. We want to get married and be together ASAP, he has a job for me with his real estate company

    David’s Answer

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    Thanks for your inquiry. The right way to do this is to submit a Form I-129F and request a fiance visa. Average processing time of this application from the time of submission until you touch foot in the US is about 6-12 months. And I can certainly understand that this is an extended period of time.

    Now there are alternatives available. And the one that jumps out is that you are a UK national and can come to the US as a Visa Waiver entrant. The benefit with this is that you do not have to wait for a visa and you can come to the US almost immediately. The risk of this is that if you come to the US under the Visa Waiver program your intent is assumed to be that of a nonimmigrant - in other words your intent is that you are coming here to the US to visit and then depart.

    If you instead stay and get married, you would be in a position to submit an application for adjustment of status with USCIS. But if at any point during the course of the proceedings an Immigration Services Officer believes that you had an intent to enter the US as an immigrant, that could be deemed to be a material misrepresentation on your behalf and this could in turn result in your being deemed ineligible to become a resident.

    Whenever I give the answer to this question most clients look at me like I have no idea about the subject. And my point of view on this is that I used to be an attorney who worked for the Immigration and Naturalization Service and I saw things that came my way only when there was trouble. And this is one of those situations where I would see trouble every now and then. So my advice is that as much as it may not be what you want to hear, do the right thing and apply for the right visa to do what it is that it is your intent to do.

    Coming here quickly and easily is what you and your fiance would like to have happen, but you do not want to risk the potential consequences of doing things quickly. While the spouse of a US citizen is provided many exceptions to the rules that make such individuals eligible for immigration benefits which other similarly situated foreign nationals do not have, I would suggest that doing things the right way is the proper course of action.

    Keep in mind that if you come to the US on the Visa Waiver program and then immediately marry and file an application for adjustment of status, this is going to tell a story about your intent. So it is important to think about the process in the bigger picture rather than concentrating on the speed at which you can be together if you come here on the Visa Waiver program.

    My response is one story and one opinion. I would highly recommend a consultation with a knowledgeable attorney who has some experience dealing with situations like this. While the process of submitting an application for adjustment of status is the about the same whether it is done from Florida or from California, there is definitely something to be said for getting the experience that an attorney familiar with processing at your local Field Office.

    I would look for someone who can sit down with you and answer your questions. It is with information that you and your fiance can make a wise decision on the best course forward. Be careful out there and good luck.

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  • If I am going on B1 visa for interview with expenses covered by university, do I need to get I134 from university?

    I am going for interview in the university and they will pay for my travel as well as living expenses. So as institute is my sponsor, do they have to fill and send me I-134 form?

    David’s Answer

    • Selected as best answer

    Thanks for your inquiry. I do not think that the I-134 would be necessary in this case. The I-134 is the "old" affidavit of support that has for most purposes been taken out of service by the I-864. But this situation is not one where an I-864 would be necessary as that form is used mainly for family based immigrant visas and certain employment based immigrant visas where there is a familial relationship between the visa's petitioner and the visa's beneficiary.

    Moreover, in cases where a foreign national is applying for a student visa, the student will generally have to convince the school that he has the financial resources needed to support himself while here in the US - including room and board, tuition, etc.. So the Form I-134 is generally not used in a straight student visa situation.

    As a general rule, an I-134 is not used with a tourist visa. With that said, I have used Forms I-134 to support an extension of status on a tourist visa and I have used a Form I-134 to submit an application for a tourist visa through a US Consular Office. This can depend on the circumstances of the case and the procedures employed by each individual consular office.

    In your case, the school is not going to complete an I-134 (at least I do not think that it would). Rather if you have evidence that the trip is being paid for by the school (i.e. a letter or other written documentation), that should probably be sufficient. The consular officer is going to understand that you are asking for a visa based on an offer conveyed by the school or if you already have the visa in your passport then I would not have any reason to believe why anyone would request an affidavit of support.

    Enjoy your trip and good luck.

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  • How do i put all the info together and send to file for my husband in jamaica. i have cover letter, i130, both of our g325a form

    passport photos in baggies, letters from 2 witness's, photos, phone bills, airline tickets of me going there numerous times. also what address do i send it to if i am in new york and should i put that address on cover letter also

    David’s Answer

    • Selected as best answer

    Thanks for your inquiry. Sounds like you have what you need. The Form I-130 completed and signed, two passport style photos of each of you, signed and completed Forms G-325 for each of you, evidence of your immigration status, evidence of the marriage and evidence of the termination of each prior relationship for each of you.

    There is no magic way to put things together. A few tips, though. Check the address where you will file by pulling down the I-130 instructions from You will be sending a "stand alone" I-130. Make sure that you staple the filing fee ($420) to the front page of the I-130. I typically staple all of the applications together as one filing. Keep a copy of EVERYTHING you send and send the paperwork by some manner through which you can track the submission of the package. NEVER send things along and not keep a copy of what you have filed, evidence that you sent it and the evidence pertaining to how it was paid.

    Once the application is received, you should receive a receipt in a few weeks. If 30 days have passed and you have not received any response I would then look at the method of payment that you employed and see if your check was cashed or your money order cashed. A lot of folks who do this on their own do not keep a copy of anything and if they do keep a copy of the filing submission they do not keep a copy of the payment. Sometimes review of the method of payment to determine whether the payment was cashed can be the means to find an application that has otherwise disappeared.

    Keep in mind that if you do not receive a receipt, then it is very difficult to get the CIS National Customer Service Center (NCSC) to help you. So this is why it is imperative that you keep ample evidence of everything that you send so that you can fix problems that may occur if the NCSC cannot help you. Fact is that most applications are processed rather smoothly and CIS does not often lose filings. But, always exercise caution and do your best to prevent problems.

    Average processing time for the I-130 (if filed by a US citizen on behalf of a spouse) is 3-6 months. If CIS needs anything in additional to what you have sent, they will ask you for additional evidence by sending a Request for Evidence (RFE). If you receive an RFE, always keep a copy of what you send back and always send it back by a means through which you can track the delivery of the response.

    Assuming that the I-130 is approved, notice of that will be sent to you and if you spouse is abroad the I-130 will be submitted to the National Visa Center (NVC). The NVC is an office within the Department of State that helps CIS process approved immigrant visa petitions and helps schedule appointments through the US Consular Offices abroad.

    Always keep CIS and the NVC apprised of any address changes. The easiest way to get lost in the process is to not tell CIS or the NVC where you are. And if applications do not receive a response, they will be denied or otherwise delayed. Keep up on the application process and things should run smoothly. If you get stuck or have questions, contact an attorney and a good one should be able to get you back on the right track. Good luck,

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