Labor Immigration Law

An AAO decision was released recently which commented on whether it is required for a petitioner who has filed a Form I-131, application for re-entry permit to be physically in the country when the application is filed.

The answer, according to the AAO decision is that the petitioner must be physically located in the U.S. at the time the I-131 re-entry permit application is filed. While it is true that the AAO decision is based on the old rules which did not require biometrics to be taken for each re-entry permit application, it is important to understand that all re-entry permits should be filed when the petitioner is in the U.S. and that the petitioner must attend the biometric appointment or risk a denial of the application.

We wrote recently about the new biometric requirements for I-131 re-entry permits which are required for all green card holders who plan to be outside the U.S. for more than six months and up to two years.

The new procedure went into effect on March 5 and requires all applicants for re-entry permit to submit to biometric (usually fingerprinting) appointment with the USCIS before departing. This new requirement has created some confusion and uncertainty as to how long the biometric processing will take.

We do not have any hard evidence on the timing of the processing, but we recommend that green card holders who plan to leave the U.S. in less than 6 months to use the expedited processing procedure outlined by the USCIS.

Expedited Processing

According to the USCIS, applicants may request an expedited processing of their fingerprinting appointment. To do so, applicants must indicated on the outside of the envelope “EXPEDITE.” Also, it is recommended that two pre-paid express mailers be included so that USCIS can mail the appointment notice and the approved re-entry permit to you via express mail.

Note that failure to submit for fingerprinting appointment will result in the re-entry permit application to be denied.

Although following this procedure does not guarantee priority processing by USCIS, we recommend it to our clients who have plans to travel abroad for extended period and whose travel plans are difficult to change.

Effective March 5, 2008, all applicants for re-entry permits and refugee travel documents must provide biometrics (fingerprints and photographs) as part of the application process. The significance of the revised procedure is that all applicants must submit to biometric processing after they file Form I-131 and before they leave the country.

The new Form I-131 instructions require that applicants for re-entry permits and refugee travel documents who are ages 14 to 79 provide biometrics before departing from the United States. There is also a new fee of $80 associated with the biometrics.

Considering the longer process and the high likelihood of delays, applicants must apply well in advance of their travel. Once an applicant submits his or her Form I-131, the USCIS will mail the applicant his or her receipt and a biometric center scheduling notice. Once the applicant completes the biometric process, he or she can either wait in the United States to receive the travel document or he or she can have USCIS forward it to a consulate abroad for pickup. Additionally, USCIS has indicated that they will allow expedited processing of travel documents under proper circumstances.

Since this is a new process, it is unclear what is a proper window of time one should allow between the planned travel and the time of I-131 filing. Additionally, we are not sure yet what is the standard for reviewing the expedited processing requests. Because this is a new procedure we think it is prudent to start it as early as possible. We will monitor the timing and attempt to obtain a safe timeline for proper filing of I-131 and submission to biometric processing.

Update: some instructions on expedited processing.