Filing I-130 Petitions For Immediate Relatives In India
The U.S. Embassy at New Delhi, India supports a United States Bureau of Citizenship and Immigration Services Office (the USCIS Office) under the Rome Immigration District Office.
The USCIS Office accepts petitions (I-130) for Alien Relatives filed by qualifying U.S. citizens who wish to sponsor family members as “immediate relatives.” Eligible “immediate relatives” of U.S. citizens are the parents, spouse or minor child, as well as the step-parent or step-child of a U.S. citizen subject to certain age criteria. U.S. citizens are required to be present at the USCIS Office to file their petitions. If a U.S. citizen is filing for a spouse, the spouse is also required to be present at the USCIS Office to enable the immigration officials to pose any questions necessary for the adjudication of the petition.
From July 4, 2004, the USCIS had permitted U.S. citizens who had resided in India for a minimum of 60 days, immediately prior to the filing date, to file I-130 petitions at the USCIS Office. This requirement ended on May 31, 2006, and from June 1, 2006, U.S. citizens who wish to file I-30 petitions are required to provide evidence that they are residents of India.
I-130 petitions that are filed at the USCIS Office are processed promptly and often within days. Earlier U.S. citizens could easily fulfill the 60 day residence requirements, and the methods of proving residence were not onerous. This was a huge advantage to several U.S. citizens who traveled to India for extended vacations and filed petitions for immediate relatives in India thereby obtaining quick adjudication and avoiding long processing periods, if filed in the U.S. Some U.S. citizens, also, traveled to India for their marriage with Indian nationals and often arrived a month prior to the wedding and stayed on for an additional month to facilitate the filing of an I-130 petition for the spouse.
The new requirement of being a resident of India is far more onerous and complex. Residency in India can be proved by a U.S. passport with an appropriate long-term, valid Indian visa and a Registration Report and Residential Permit issued by the Foreigner’s Regional Registration Office (FRRO) of the Government of India (explained below). U.S. citizens are required to prove long term residence by providing additional evidence including, but not limited to, evidence of on-going employment in India, taxes paid in India, rent/property receipts, and utility receipts in India. In most instances when a U.S. citizen has less than 90 days continuous presence in India, the USCIS does not find adequate residency.
Most foreign nationals including U.S. citizens who wish to come to visit India for work, business, and pleasure or otherwise require a valid passport of and a valid, appropriate Indian visa. U.S. citizens require a passport and visa to both enter and exit India unless they are of Indian origin and have other documentation that allows travel to India without a visa.
Nearly all foreign nationals, on long term visas and foreign nationals from certain countries on any visa are subject to registration in India as provided by the Registration of Foreigners Act, 1939 and Registration of Foreigners Rules, 1992. Foreign nationals entering India on a Student, Employment, Research or Missionary visa, which is valid for more than 180 days, are required to register with the Foreigners Registration Officer under whose jurisdiction they propose to stay. This should be done within 14 days of arrival in India, irrespective of their actual period of stay.
Foreign nationals, visiting India on any other category of a long-term visa that is valid for more than 180 days, are not required to register if their actual stay does not exceed 180 days on each visit. If such a foreign national intends to stay in India for more than 180 days during a particular visit, he/she should get registered within 180 days of arrival in India. Foreign nationals visiting India on visas that are valid for less than 180 days and children below 16 years of age are not required to register. Nationals of certain countries are required to register within 24 hours to 7 days of their arrival in India. Registration facilities are not provided at the airport. Foreign nationals have to register only at the offices of the appropriate Registration Officer. A registered foreign national is issued a Registration Booklet or Certificate containing his or her latest photograph, details of residence etc. In addition, the foreign national’s passport is stamped as proof of registration.
Overseas Citizens of India
Certain categories of foreign nationals that are registered as Overseas Citizens of India (OCI) with the Ministry Government of India are exempt from registration with the FRRO in India as described above. Foreign nationals, including U.S. citizens of Indian origin who fall within the following categories are eligible to be registered as Overseas Citizens of India:
A foreign national, who was eligible to become a citizen of India on January 26, 1950; or
Was a citizen of India on or at anytime after January 26, 1950; or
Belonged to a territory that became part of India after August 8, 1947; or
Child or grand child of person mentioned in 1 to 3; or
Minor children of such persons mentioned above.
This is subject to the laws of the foreign nationals’ home country allowing dual citizenship in some form or other under the local laws. However, an individual that has been a citizen of Pakistan or Bangladesh, or foreign nationals, not of Indian origin, married to persons of Indian origin are not eligible to obtain OCI status
An OCI is not required to register with any local police authority including the applicable FRROM or the Foreigners Registration Officer for any length of stay in India.
Persons of Indian Origin
Persons of Indian Origin (PIO) who hold the nationality of another country are also subject to the same visa requirements as discussed above. However, PIO’s can presently apply for a PIO card at an Indian consulate. Upon obtaining a PIO card, this individual would not have to obtain an Indian visa.
A PIO cardholder is exempt from registration if his/her stay in India does not exceed 180 days. However, if the stay exceeds 180 days, the PIO Card holder has to register within 30 days of the expiry of 180 days with the concerned Registration Officer.
"Person of Indian origin" means a foreign citizen not being a citizen of Pakistan, Bangladesh and other countries as may be specified by the Central Government from time to time if.
He/she at any time held an Indian passport; or
He/she or either of his/her parents or grand parents or great grand parents was born in and permanently resident in India as defined in the Government of India Act, 1935 and other territories that became part of India thereafter provided neither was at any time a citizens of any of the aforesaid countries (as referred to in 2(b) above; or
He/she is a spouse of a citizen of India or a person of Indian origin covered under (i) or (ii) above.
c) “PIO Card” means a card issued under the PIO scheme.
Proof of Residence by OCIs and PIO Cardholders:
OCI registration is for the lifetime of the individual and is not subject to renewal. In addition, an OCI does not require a visa to enter India as OCI registration provides a life-time, multi-purpose visa and exemption from registration among other benefits. Proof of registration as an OCI would fulfill the requirement of an appropriate, long term visa when seeking to file a I-130 petition. However, since OCIs are exempt from registering with the FRRO, when filing the I-130 petition, they cannot produce the Registration Report and Residential Permit issued by the Foreigner’s Regional Registration Office (FRRO) of the Government of India, primary evidence of residence, as required by the USCIS Office.
On the other hand, PIO cardholders are required to register with the FRRO if their stay exceeds 180 days. Therefore, a PIO card holder would be able to provide the necessary proof of registration.
On making telephonic inquiries with the USCIS Office at New Delhi, the author was informed that a registered OCI needs to submit a copy of the passport, OCI registration documents and other proof of residence. Thus, an OCI may still have to show that he or she is residing in India. The Indian Immigration Authorities, at the ports of arrival, examine and stamp all passports of foreign nationals and returning Indians with the date of entry into the country. In addition, the passports are also stamped with exit dates at the time of departing from India. Therefore, relevant passport pages bearing entry and exit stamps indicating the date would provide information about duration of stay in India and should be submitted with the I-130 petition.
The website maintained by the U.S. Embassy at New Delhi also mentions that applicants who do not meet the residency requirements must file their petitions in the United States with the Service Center having jurisdiction over their place of residence.
Parts of this article have been borrowed from Reverse Immigration: Foreign Nationals Working In India, an article that originally appeared on www.cyrusmehta.com, May 18 2004, authored by Cyrus Mehta and Poorvi Chothani.
This article originally appeared on www.cyrusmehta.com on October 20, 2006.
About The Author
Poorvi Chothani is a U.S. attorney at law and an advocate, licensed to practice in India since July 1984. She is the Correspondent Attorney in Mumbai, India for Cyrus D. Mehta and Associates, P.L.L.C. In May 2003, she graduated with an LL.M. degree from the University of Pennsylvania Law School and passed the New York State Bar Examination conducted in July 2003. She is admitted to practice law in the State of New York. For further information please write to firstname.lastname@example.org.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
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