Cohen, Tucker + Ades P.C. is issuing this alert to inform our clients and community about significant recent updates to the U.S. Citizenship and Immigration Services (USCIS) Policy Manual concerning the adjudication of family-based immigrant visa petitions, particularly Form I-130, Petition for Alien Relative, for spouses.

While these changes primarily consolidate and clarify existing procedures, the implications for petitioners and beneficiaries—especially those with complex immigration histories—are substantial and require meticulous preparation. These updates represent an enhanced focus on scrutiny and the integrity of the marriage relationship.

Key Takeaways from the Updated Policy Guidance

The new USCIS guidance, which is now centralized in the Policy Manual, specifically addresses eligibility, documentation, interview requirements, and, most importantly, enforcement measures.

1. Heightened Enforcement: The Risk of a Notice to Appear (NTA)

Perhaps the most critical clarification is the explicit statement regarding potential Notices to Appear (NTAs).

• No Status Conferred: USCIS explicitly states that the filing or even approval of a family-based petition, such as the I-130, does not grant any immigration status to the beneficiary, nor does it act as a bar against removal.

• Removal Proceedings: If USCIS determines that an I-130 beneficiary is removable or otherwise amenable to removal (e.g., due to unlawful presence, criminal history, or a prior deportation order), the agency may now issue an NTA, placing the individual directly into removal proceedings before an Immigration Judge.

This clarification means that beneficiaries with any past immigration violations who file a stand-alone I-130 are at a significantly higher risk. Meticulous legal review is paramount before filing.

2. Clearer Interview Requirements

The guidance provides specific scenarios that will likely trigger an interview for both the petitioner and the beneficiary. These are designed to ensure the bona fides of the marital relationship and the overall eligibility of the beneficiary.

Interviews are generally required when:

• There are material inconsistencies or derogatory information.

• The petition lacks reliable evidence of a bona fide marriage.

• Either party has a prior denied or revoked spousal petition for a different beneficiary.

• The petitioner is a Lawful Permanent Resident (LPR) who obtained their own Green Card through marriage less than five years prior.

3. Clarified the legal standard for a valid spousal relationship

A major focus of this updated guidance is clarifying the legal standard for a valid spousal relationship. The manual explicitly defines what constitutes a “spouse” for immigration purposes and details the types of marriages recognized under U.S. law. Specifically, the updated policy provides much-needed clarity on complex and often challenging scenarios, including how USCIS officers must evaluate marriages that violate a U.S. state’s or foreign country’s public policy, such as marriages involving minors or polygamous unions. Furthermore, it provides specific rules for recognizing marriages solemnized without the physical presence of both parties, such as proxy marriages, ensuring a consistent standard is applied across all field offices.

4. Permanent Bar for Frivolous Asylum Claims

If an immigrant knowingly filed a frivolous asylum application on or after April 1, 1997, and this finding was upheld by a final order from an Immigration Judge or the Board of Immigration Appeals (BIA), that immigrant is permanently barred from receiving any immigration benefits under the Immigration and Nationality Act (INA). This absolute bar includes the ability to be sponsored as a beneficiary of any family-based immigrant visa petition (such as an I-130 petition filed by a spouse or relative). A claim is considered frivolous if the applicant fabricated any crucial part of their story and couldn’t prove otherwise. Crucially, this permanent bar can be issued even if the asylum application was late or was later withdrawn.

5. Clarified Case Routing for Approved Petitions

The updated manual provides more detailed procedures for how approved I-130 petitions are routed:

• Adjustment of Status (AOS): If the beneficiary is eligible to adjust status in the U.S. and properly indicates their preference on the I-130, the petition is retained by USCIS.

• Consular Processing: If the beneficiary is outside the U.S. or chooses to process abroad, the petition is sent to the Department of State’s National Visa Center (NVC).

• Unclear or Changing Preference: The new policy clarifies how USCIS will exercise its discretion to route a petition when the beneficiary’s preference is unclear or has changed. In general, if your selection is unclear, USCIS will decide whether to keep the petition or forward it to the NVC based on the available facts, potentially causing delays.

How to Navigate the New Policy with Cohen, Tucker + Ades

Given this renewed emphasis on compliance and enforcement, our strategic approach to I-130 spousal petitions is more critical than ever.

Proactive Strategy is Key

1. Comprehensive Review: We emphasize a thorough review of the beneficiary’s entire immigration and criminal history before the I-130 is filed. Identifying and strategically addressing any potential inadmissibility issues (like unlawful presence or prior criminal convictions) is essential to mitigate NTA risk.

2. Meticulous Preparation: Our firm is dedicated to filing a complete, well-documented petition that anticipates and proactively addresses the “red flag” issues outlined in the new policy, significantly reducing the chance of an RFE (Request for Evidence) or an interview where the beneficiary’s status may be jeopardized.

3. Waiver Strategy: In cases involving potential inadmissibility, we develop a plan to address those issues, often including filing a waiver concurrently with or before the I-130, which can be a vital safeguard against removal proceedings.

4. Legal Representation at Interview: For all but the most straightforward cases, we strongly advise and provide legal representation at your USCIS interview. An experienced attorney can ensure consistency, accuracy, and that your rights are protected, especially when questioning touches upon sensitive or derogatory information.

Don’t Go It Alone

Immigration law remains second only to tax law in its complexity. These USCIS Policy Manual changes, particularly the elevated risk of removal proceedings, underscore the critical need for experienced legal counsel.

If you are planning to file an I-130 spousal petition or have a pending application, now is the time to consult with an attorney who is skilled in both USCIS filings and removal defense.

Contact Cohen, Tucker + Ades P.C. today to schedule a consultation and ensure your family’s future in the United States is navigated with the highest level of detail, strategy, and protection.

Sources:

USCIS | USCIS Policy Manual, Volume 6 – Immigrants, Part B – Family-Based Immigrants, Chapter – Spouses

USCIS | Policy Alert SUBJECT: Family-Based Immigration: Spousal Petitions

Disclaimer: This blog post is for informational purposes only and does not constitute legal advice. You should not act upon any information contained herein without seeking professional legal counsel.