Summary Judgment Procedure in Wisconsin

By John DiMotto

When a person files a civil lawsuit to seek redress from what he/she perceives to be an injustice, that person is usually entitled to a trial on the merits. I say "usually" because there is a circumstance where a person is denied the right to a trial. That "circumstance" is when there is no genuine issue of material fact a person is NOT entitled to a trial. Whether this "circumstance" is present is determined by Summary Judgment.

Chapter 802 of the Wisconsin Statutes addresses "Pleadings, Motions and Pretrial Practice." One of the motions that Chapter 802 addresses is the Motion for Summary Judgment.

802.08(1) sets forth that a party:

"...may move for summary judgment on any claim, counterclaim, cross claim or 3rd party claim which is asserted by or against the party".

802.08(2) sets forth that:

"The judgment sought shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue to the amount of damages."

802.08(3) sets forth that:

"Supporting and opposing affidavits shall be made on personal knowledge and shall set forth such evidentiary facts as would be admissible in evidence."

802.08(5) sets forth that:

"Should it appear to the satisfaction of the court at any time that any of the affidavits presented pursuant to this section is presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused the other party to incur, including reasonable attorney fees."

Finally, 802.08(6) sets forth that:

"If it shall appear to the court that the party against whom a motion for summary judgment is asserted is entitled to a summary judgment, the summary judgment may be awarded to such party even though the party has not moved therefor."

In order to ensure that summary judgment is not abused, appellate courts have set forth principles to be embraced by the trial court.

Summary judgment is only available when "there is nothing to try." When brought by a defendant, it is akin to a motion for dismissal at the end of the plaintiff's case if there is not credible evidence in support of the elements the plaintiff must prove. see Transportation Ins. Co. v. Hunzinger, 179 Wis.2d 281 (Ct. App. 1993)

The party with the burden of proof at trial in connection with a claim has the burden to show that there is a genuine issue of material fact that requires a trial on that claim. This burden can be met by reasonable inferences drawn from circumstantial evidence. Submissions are to be examined in the light most favorable to the nonmoving party. see Tomson v. American Family Ins. Co., 321 Wis.2d 492 (Ct. App. 2009).

An issue of fact is genuine if a reasonable jury could find for the nonmoving part. A material fact is such a fact that would influence the outcome of the controversy. see Marine Bank v. Taz's Trucking Inc., 281 Wis.2d 275 (2005).

A case founded only on hunches and speculation rather than evidence will not justify a trial. see Dyer v. Blackhawk Leather, LLC, 313 Wis.2d 863 (Ct. App. 2008).

Courts do not make findings at the summary judgment stage. Summary judgment methodology prohibits the trial court from making findings of fact. The trial court does not weigh the evidence or determine credibility of evidence. see Continental Casualty v. Milwaukee Metropolitan Sewerage District, 175 Wis.2d 527 (Ct. App. 1993).

While summary judgment is considered a drastic remedy which should not be granted when material facts are in dispute, without a doubt a trial court can and should grant summary judgment in those instances where the controlling material facts are not in dispute and the application of the law to the facts is not doubtful. see Town Bank v. City Real Estate Development LLC, ___Wis.2d___, 2010 WI 134.

Summary judgment should not be granted unless material facts are not in dispute, no competing inferences can arise and the law that resolves the issue is clear. see Tele-Port v. Ameritech Mobile Communications, 248 Wis.2d 846 (Ct. App. 2001).

When a motion for summary judgment is brought, the adverse party may not rest on mere allegations or denial in the pleadings but must set forth evidence. The opponent to summary judgment does not have the luxury of resting upon allegations or denials but must advance specific facts showing the presence of a genuine issue of material fact. see Schreiner v. Wieser Concrete Products, Inc. 294 Wis.2d 832 (Ct. App. 2006).

Any reasonable doubt as to the existence of disputed material fact is resolved against the moving party. see In rel Paternity of Taylor R. T., 199 Wis.2d 500 (Ct. App. 1996).

A question of law is suitable for summary judgment. see Public Service Corporation v. Heritage Mutual Ins. Co., 200 Wis.2d 821 (Ct. App. 1996).

Summary judgment can resolve legal issues and contract construction. see Meyer v. City of Amery, 185 Wis.2d 537 (Ct. App. 1994).

As you can see from the the declarations of appellate courts, if there is a dispute of material fact or if a contract is ambiguous, a trial court should never grant summary judgment. If there is a question of credibility, summary judgment cannot be granted. If there is evidence "to be weighed," summary judgment cannot be granted. Summary judgment is not a substitute for a trial but a mechanism to resolve a lawsuit where there is not dispute of fact or law.

Daubert in Wisconsin -- Seismic or Subtle?

By John DiMotto

Over the past 16 days since, since the Daubert Rule took effect in Wisconsin, I have had numerous conversations with my colleagues about whether this evidentiary rule change will be seismic or subtle. Based on those conversations and my review of statutes and case law, I have come to the "preliminary opinion/conclusion" that it will be subtle because of the considerable overlap between concepts of relevancy and reliability. Let me explain.

Black's Law Dictionary, 5th Edition, defines relevancy as follows:

"Applicability to the issue joined. That quality of evidence which renders it properly applicable in determining the truth and falsity of the matters in issue between the parties to a suit. Two facts are said to be relevant to each other when so related that according to the common course of events, one either taken by itself or in connection with other facts, proves or renders probable the past, present, or future existence or non-existence of the other."

"Relevancy is that which conduces to the proof of a pertinent hypothesis; a pertinent hypothesis being one which, if sustained, would logically influence the issue."

"Relevancy of evidence refers to its probative value in relation to the purpose for which it is offered. ... Term describes the logical relationship between a proffered item of evidence and a proposition that is material or provable in a given case."

Black's Law Dictionary, 5th Edition, defines reliable as follows:

"Trustworthy, worthy of confidence."

I believe that these two definitions must be read together and, if done, the reader will arrive at the inescapable conclusion that to be "relevant" the evidence in question must, in some measure, be "reliable." How can evidence be "probative", that is, "have the effect of proof" or the ability to "prove a fact or hypothesis" unless it has reliability?

I believe that an examination of Wisconsin statutory and case law reinforces my opinion/conclusion/proposition that to be relevant, evidence must have reliability.

The Wisconsin Rules of Evidence address "relevant evidence" in 904.01 The definition is in accord with the definition of relevancy in Black's Law Dictionary. It sets forth:

"'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."

If evidence is to have "any" tendency to make something "more" or "less" probable, doesn't the evidence to have some indicia of reliability?

In State v. Payano, 320 Wis.2d 348 (2009), the Wisconsin Supreme Court reiterated that relevance has two components:

1) The evidence must go to a consequential proposition and,

2) The evidence must make the consequential proposition more probable or less probable.

If the evidence can make the consequential proposition more or less probable, doesn't it stand to reason that it must be reliable?

In State v. Ross, 260 Wis.2d 291 (Ct. App. 2003), the Court of Appeals, in addressing the concept of relevancy stated:

"In determining a dispute concerning the relevancy of proffered evidence, the question to be resolved is whether there is a logical or rational connection between the fact which is sought to be proved and a matter of fact which has been made an issue in the case."

In order for the evidence to make the logical or rational connection, doesn't it stand to reason that it must be reliable?

In Winnebago County v. Harold W., 215 Wis.2d 521 (Ct. App. 1997), the Court of Appeals, in addressing relevancy stated:

"Relevancy is an elastic concept which must be assessed in light of the nature of the proceedings."

Doesn't this definition imply the need for the evidence to have some reliability? And, if it does, then shouldn't it be admitted and let the trier of fact give it such weight as it deems the evidence is entitled to receive?

Finally, I believe that a re-reading of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), supports my opinion/conclusion/proposition.

1) SCOTUS stepped back from the rigid "general acceptance" rule of Frye.

a) The drafting history of Rule 702 makes no mention of Frye and a rigid "general acceptance" requirement would be at odds with the "liberal thrust" of the Federal Rules and their "general approach of relaxing the tradition barriers to 'opinion' testimony.

2) SCOTUS held that the trial judge must decide whether the expert is purporting to testify as to scientific knowledge that will assist the trier of fact to understand or determine a fact in issue and that this entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether it can properly be applied to the facts in issue.

However, and most significantly,

3) SCOTUS made it clear that:

a) This is a flexible inquiry;

b) Rule 702 will not create a "free for all"; and,

c) [1] Vigorous cross examination, [2] presentation of contrary evidence and [3] careful instructions on burden of proof are traditional and appropriate means of attacking shaky but admissible evidence.

I believe that SCOTUS intended to make the introduction of expert testimony easier.

I believe that the thrust of Daubert is that SCOTUS intended the degree of reliability necessary for the introduction of expert testimony to be low.

I believe that while the Wisconsin Walstad Relevancy Rule is more liberal than the Daubert Reliability Rule, that the differences are not very great and that Daubert will not dramatically change the landscape when it comes to the introduction of expert testimony.

In terms of the necessity for and extent of 901.04 (1) hearings, I believe that trial judges need not "re-invent the wheel" when it comes to the qualifications of the expert and the expert principle at issue. If the expert and/or the principle have previously been litigated, I believe that the trial court can rely on "past precedent." For example, I do not think any judge need conduct an extensive hearing as to whether DNA evidence will be admissible. I believe that the reliability of DNA evidence has been decided. With respect to other areas there may be a need for 901.04(1) hearings. However, the trial judge must be mindful that, based on the strong language in Daubert, the threshold for admissibility is a low one. Trial judges must always remember that, for the most part, "weight of evidence" is left to the sound decision of the trier of fact.

Seismic or subtle?

I say subtle.

Daubert In Wisconsin -- Initial Applicability to Criminal and Civil Cases

By John DiMotto

2011 Wisconsin Act 2, which became effective on February 1, 2011, brought the Daubert "Reliability"Rule with respect to the introduction of expert evidence to Wisconsin, replacing the Walstad "Relevancy" Rule. A crucial question that the legislation has prompted is whether the Daubert Rule applies prospectively in all cases commenced on the effective date of the act or just civil cases. An attempt to answer this questions raises more questions.

Initial Applicability

Section 45 of the bill addresses the initial applicability of the various provisions in the bill. As it pertains to the Daubert Rule (907.01 - 907.03) the legislation reads as follows:

"Section 45(5) CIVIL ACTIONS. The treatment of ...907.03, the renumbering and amendment of sections 907.01 and 907.02 of the statutes, and the creation of sections 907.01(3) and 907.02(2) of the statutes first apply to actions or special proceedings that are commenced on the effective date of this subsection."

Is this a definitive statement that the Daubert Rule applies only to civil cases commenced after January 31, 2011, that is, prospectively, but that it applies to all criminal cases that is, "retroactively" as well as "prospectively" regardless of when they are commenced?

In order to seek out an answer to this question, it is necessary to look at statutory language and case law regarding construction of laws.

Statutory Construction

Chapter 990 is entitled "Construction of Statutes." 990.001(6) addresses statutory titles and history notes. It specifically states:

"The titles to subchapters, sections, subsections, paragraphs and subdivisions of the statutes and history notes are not part of the statutes."

Does this means that the title to (5): "CIVIL ACTIONS" is not technically part of the statute and not to be given any weight? If it is not part of the law, does that mean that the Daubert Rule which applies to "actions and special proceedings" applies to criminal actions as well as civil actions which are commenced after January 31, 2011, that is "prospectively" and not "retroactively?"

Case Law

In Betthauser v. Medical Protective Co., 172 Wis.2d 141 (1992), the

Wisconsin Supreme Court referenced that:

"The general rule in Wisconsin is that legislation is presumptively prospective unless the statutory language clearly reveals either expressly or by necessary implication an intent that the statute apply retroactively."

In Steffen v. Little, 2 Wis.2d 350 (1957), the Wisconsin Supreme Court set forth that:

"While statutes in general are construed prospectively the rule is otherwise with statutes whose operation is procedural or remedial."

However, the Court also recognized that:

"it is a fundamental rule of statutory construction that a retroactive operation is not to be given so as to impair an existing right or obligation otherwise than in matters of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment." see State ex rel. Schmidt v. District No. 2 (1941), 237 Wis.186.

Daubert Rule

Four more questions that are prompted by 990.001, Betthauser and Steffen are:

1) Does 990.001 evince an intent that the statute apply retroactively to criminal cases?

2) Is the Daubert Rule procedural or remedial?

3) Would retroactive application impair contracts or disturb vested rights?

4) Did the legislation intend to have a Rule apply differently with respect to civil cases vis a vis criminal cases?

These are questions that will undoubtedly be raised and which must be addressed by courts throughout Wisconsin in the coming months.

The Daubert "Expert Testimony" Rule: Coming to Wisconsin

By Judge John DiMotto

By the passage of Senate Bill 1 during the recent 2011 Special Legislative Session called for the purpose of addressing tort reform, Wisconsin is poised to join the federal courts and the majority of states by adopting the Daubert "reliability" Rule for the admission of expert testimony. No longer will Wisconsin rely on the Walstad "relevancy" rule, rather Wisconsin judges will now take a more active "gatekeeper" role in the first instance. Does this mean that seismic changes are on the horizon or will the change be subtle at best? To answer this question requires a brief look at the differences between the Walstad "relevancy" rule and the Daubert "reliability" rule.

But first, a little history.

In Frye v. U.S., 293 F.2d 1013 (D.C. CA 1923), the D.C. Court of Appeals adopted the Frye test or "general acceptance." Under this test, expert opinion based on a scientific technique is inadmissible unless the technique is generally accepted as reliable in the relevant scientific community.

In Watson v. State, 64 Wis.2d 264 (1974), the Wisconsin Supreme Court rejected an argument by defense counsel that the "general acceptance" standard of Frye governs the admissibility of expert opinion in Wisconsin. The Court cited to McCormick, Evidence, which is critical of the Frye rule, and stated that in Wisconsin, we follow the wide-open rule of cross-examination to test credibility.

In State v. Walstad, 119 Wis.2d 483 (1984), the Wisconsin Supreme Court reiterated that the Frye test is foreign to the Wisconsin Rules of Evidence section 904.02 which sets forth that all relevant evidence [evidence having a tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence] is admissible. Thus, for over 47 years, Wisconsin has opted to use a "relevancy" standard with respect to the admission of expert testimony.

In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the United States Supreme Court addressed the viability of the Frye test. In Daubert, SCOTUS stated that the Frye "general acceptance" test was superseded by the adoption of the Federal Rules of Evidence and held that nothing in rule 702 establishes "general acceptance" as an absolute prerequisite to admissibility nor did it incorporate the "general acceptance" standard. SCOTUS held that before admitting expert testimony the trial judge must decide under Rule 104(a) whether the expert is purporting to testify as to scientific knowledge that will assist the trier of fact to understand or determine a fact in issue and that this entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether it can properly be applied to the facts in issues. SCOTUS further set forth factors to consider in making the determination. SCOTUS made it clear that this is a flexible inquiry and that this rule will not create a "free for all" and that vigorous cross examination, presentation of contrary evidence and careful instructions on burden of proof are traditional and appropriate means of attacking shaky but admissible evidence. (In Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), SCOTUS made it clear that the Daubert "reliability" Rule applies to all expert testimony, not just scientific expert testimony.)

In State v. Peters, 192 Wis.2d 674 (Ct. App. 1995), the Wisconsin Court of Appeals considered whether the Daubert "reliability" Rule affected the Walstad "relevancy" Rule and held that it did not. The Court did stat that while Wisconsin confines itself to determination of relevancy, that Wisconsin trial judges do serve a limited and indirect "gatekeeping" role, albeit, oblique. The court stated that scientific evidence can be rejected, though relevant, if it is superfluous, a waste of time, other 904.03 reasons, the jury does not need it, evidence is inherently improbable, or the area is not suitable for expert opinion [ie. public policy reasons such as polygraph tests]. The Court further stated that this list is not an exhaustive inventory of grounds to refuse to admit relevant evidence and indicated that although Wisconsin trial judges do not evaluate the reliability of scientific evidence, they may restrict it through a limited gatekeeping function.

Today, by virtue of the amendments to 907.02 and 907.03, the Walstad "relevancy" Rule has been superseded by the Daubert "reliability" Rule (as amended by changes in 2000).

As a result, Wisconsin trial judges now must be "gatekeepers" as to all expert testimony as to both relevancy and reliability. Absent a stipulation, Wisconsin trial judges should conduct a 901.04 hearing outside the presence of the jury to determine whether expert testimony will or will not be admitted. In that hearing the trial judge will be guided by Daubert factors and others from cases subsequent to Daubert.

The Committee Note on Rules - 2000 Amendment discusses the fact that Daubert sets forth a non-exclusive "checklist" for trial courts to use in assessing reliability of expert testimony and further discusses that other courts have added to the checklist. The checklist discussion in the Committee Notes includes:

1) Whether the expert's technique or theory has been tested.

2) Whether the technique or theory has been subjected to peer review and publication.

3) The known or potential rate of error.

4) The existence and maintenance of standards and controls.

5) Whether the technique or theory has been generally accepted in the scientific community.

6) Whether experts are proposing to testify about matters flowing naturally and directly out of research they have conducted independent of the litigation, or whether they have developed it for purposes of testifying.

7) Whether the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion.

8) Whether the expert has adequately accounted for obvious alternative explanations.

9) Whether the expert is being as careful as he would be in his regular professional work outside his paid litigation consulting.

10) Whether the field of expertise claimed by the expert is known to reach reliable results for the type of opinion the expert would give.

Under 907.02, before expert testimony will be admitted, the trial court must be satisfied that:

1) The testimony is based upon sufficient facts or data.

2) The testimony is the product of reliable principles and methods. and,

3) The witness has applied the principles and methods reliably to the facts of the case.

The "$64,000 Question" that I posed in my first paragraph and that remains to be answered is still: Is this a seismic change or a subtle change?

I am not sure we will have an answer in the near future, but in the meantime and in the final analysis, what it will "boil down to" is for every trial judge to properly exercise his or her discretion in terms of both relevancy and reliability via a flexible inquiry conducted under 901.04.

Immigration Law - The Fiance Visa

By John DiMotto

Another visa that is immediately available for review and processing by the USCIS is the K-1 "fiance visa."

A fiance of a US citizen who will travel to the US to marry and take up indefinite residence after marriage maybe eligible for a fiance visa. There are four criteria that must be met:

1) One party is a US citizen.

2) Both parties are legally free to marry.

3) The parties have met in person at least once in the two years prior to filing the petition absent a waiver of the requirement.

4) The marriage will take place within 90 days of the fiance entering the US on the fiance visa.

If the four criteria are met, then:

1) The US citizen must file an I-129F (Petition for Alien Fiance) with USCIS. It can only be filed in the US. If the petition is approved,

2) It is then forwarded to NVC for additional processing. After it is processed and approved,

3) The petition is then sent to the Embassy having jurisdiction over the alien fiance where an interview of the alien fiance will take place. If the interview goes well and is approved by Embassy staff,

4) The K-1 visa will be issued and the alien fiance may immigrate to the US.

5) If the marriage takes place in a timely fashion, the now alien spouse must file an I-485 to adjust status to a conditional permanent resident. This conditional permanent residency is granted to ensure the marriage is not a sham. The alien spouse may not leave the US or work until the I485 is granted. If granted, the alien spouse can work. The "condition" is reviewed in approximately two years. If the "condition" is removed then regular permanent residency is granted which is good for ten years until the next review.

The timeline from when the I-129F is filed until it is granted by USCIS is approximately 5 - 6 months. Further, from the time the I-129F is forwarded to the Embassy until a final decision is made can be an additional 3 - 6 months.

The I-129F petitions are reviewed in the order they are received by USCIS. There is no quota on these petitions since the US recognizes the importance of expeditious processing of visas for a US citizen and his/her fiance. The US wants to spare long separations between fiances but it also wants to ensure that there truly is a relationship and bond between the fiances.

Immigration Law -- Immediate Relative Visa Options

By John DiMotto

If an individual seeking a visa and permanent residency in the United States is an "immediate relative," (IR) such as a spouse, there are two possible ways to obtain an immediate relative visa. First, the US citizen spouse (USCS) can file an I-130 with USCIS in the United States. Second, if the US citizen is a resident of the country where the IR lives, the US citizen may be able to file the I-130 with the US embassy in that country.

Filing the I-130 in the US:

If the USCS files the I-130 in the United States, the USCS may also concurrently file an I-485 Petition to Adjust the Status of the IR. The granting of the I-130 Petition will get the IR a visa to enter the country. The subsequent granting of the I-485 Petition will get the IR his/her "green card" -- permanent residency. Filing in the United States is a two step process. It ordinarily takes 5 - 6 months to get approval of each Petition.

Filing the I-130 with the US Embassy in the country of the IR:

If the USCS is eligible to file the I-130 with the US Embassy in the country where the IR lives, a process known as "Consular Processing" (CP), the IR can become a permanent resident directly through CP. Everything is done through the US Embassy which is a much quicker process. USCIS via the embassy works with the State Department to issue an IR visa on an approved I-130 Petition. If the State Department issues the visa, the IR spouse may then travel to the United States and will officially become a permanent resident when admitted at a US port of entry. If CP can be used it can potentially reduce the total time to obtain permanent residency by half.

In order to be able to file the I-130 with the US Embassy in the country of the IR, the USCS must meet filing requirements. The key filing requirement is that the USCS must be a resident in the country of the IR. They must show they have permission to reside in the consular district and have been doing so for at least six months before filing the petition.

Regardless of whether the I-130 is filed in the United States or in the US Embassy in the country where the IR lives, an important component in the process is the consular interview. Once the I-130 has passed a review by USCIS and the National Visa Center, the last step before a final decision is made is the consular interview. This takes place at the US Embassy. The interviewer wants to make sure that the request is appropriate. If the IR is a spouse, the interviewer will want to be satisfied that the marriage is legitimate and not merely a sham to get the IR into the United States. The IR will oftentimes present documentary evidence and photographs, etc that establish a "true" marital relationship. If the interviewer is satisfied that the relationship is genuine and that the IR will not be a burden or threat to the United States, final approval is given, the IR visa issued and the IR may immigrate to the United States.

In my next blog, I will look at the K-1 "Fiance" visa process.

Immigration Law -- The Visa Process

By John DiMotto

As we begin 2011 and as I move into my second year as a blogger, I have decided to leave my "comfort zone" -- Wisconsin law -- and look at a more national issue: Immigration Law. My focus in this upcoming series will NOT be on whether the law and procedures are good or bad rather the focus will be on what the law requires and what what must be done to comply with the law. Additionally, I want to look at the law as it pertains to "Alien Relative" immigration as well as "Fiance" immigration. Today, I will discuss "Alien Relative" immigration.

Alien Relative Immigration:

U.S. citizens who want a relative to immigrate to the U.S. and obtain status as a permanent resident have a number of options to pursue. Also, depending on the nature of the relative "relationship," the time it will take to obtain the appropriate visa will be different.

Immediate Relative Immigration:

If the relative seeking a visa to immigrate is an "immediate relative", he/she does not have to wait for a visa number. There are an unlimited number of visa numbers is immediately available to an "immediate relative." An "immediate relative" is a spouse, unmarried children under the age of 21 and parents. The fact that there are an unlimited number of visa numbers for "immediate relatives" does not mean that there is no wait time for the issuance of the "immediate relative" visa. More on this later.

Family Preference Category Immigration:

If the relative seeking a visa to immigrate does not qualify as an "immediate relative" then that relative is placed in the "family preference" category. This relative must wait in line for a visa number to become available for him/her to immigrate because there are a limited number of these visas available each year. Those persons in the "family preference" category include unmarried sons or daughters over the age of 21, married children of any age, brothers and sisters if the U.S. citizen petitioner is over the age of 21.

From the time the Petition for Alien Relative (I-130) is filed in the case of an "immediate relative" or starting from the time a visa number becomes available in the case of a family preference category relative, until the time the visa is actually issued can take between 6 to 10 months. This process entails the U.S. Citizenship and Immigration Services (USCIS) to review the I-130 (4 - 5 months). If approved it is sent to the State Department National Visa Center (NVC) for its review (1 - 3 months). If approved the documents are sent to the U.S. Embassy in the country where the alien relative lives where the staff will review the documents and call the alien relative in for an interview (1 - 2 months) after which it makes a final decision.

Once the alien relative is admitted to the U.S., in order to be granted permanent residence status (issued a green card) another petition (I-485) must ordinarily be filed, reviewed and approved. (There is an exception which I will not discuss today.) Once the "green card" is issued, then the alien relative may obtain employment. (There is a provision in the law whereby the alien resident, while waiting for the "green card" can petition for an employment authorization document [EAD]. I will not discuss this today.) The timeline for approval of the I-485 can be 5 months.

As you can tell by the process, from the time the I-130 is filed and a visa number is available (immediately for an "immediate relative" but with a time delay for those in the "family preference" category) until the "green card" is issued can take up to 15 months. The wheels of government do rotate slowly.

More on these immigration issues in my next blog.