Filing The I-130 Immigrant Visa Petition
STEP 1: File The I-130 Petition
The U.S. citizen or U.S. permanent resident must prepare and assemble the following forms and supporting documents and mail it to the U.S Citizenship & Immigration Service (USCIS) with the appropriate fee. Remember that a separate Form I-130 must be submitted for each qualifying relative.
A. Supporting Documents And Forms To Be Submitted Along With The I-130 Petition
1. Form I-130, Petition for Alien Relative.
2. Filing fee, as required by USCIS. The fee can be paid with a personal check, bank draft or money order made out to the U.S. Department of Homeland Security. Fees cannot be paid in cash. The use of checks or money orders will allow the petitioners to track their payment.
3. Cover Letter. The petition and documents should include a cover letter that contains a description of what petition or application is being submitted (Form I-130), and a complete list of everything that is sent in the packet to USCIS. It should also include an explanation of any special circumstances involved.
NOTE: If additional room is needed to explain the case, attach a separate sheet (list the attachment on the cover sheet). Make sure to sign and date the cover sheet.
4. Proof of U.S. citizenship or permanent residence of the Petitioner (the individual filing the Form I-130).
i. Proof of U.S. citizenship includes but is not limited to the following documents:
a) If born in the U.S., a copy of the long form Birth certificate (must include the names of parents) (front and back) issued by the appropriate civil agency
b) Copy of the biographic pages of a valid unexpired U.S. passport
c) Copy of the naturalization certificate or certificate of citizenship issued by the USCIS or the former INS
d) Copy of the FS-240, Report of Birth Abroad of a Citizen of the United States, issued by a U.S. Embassy or consulate
ii. Proof of U.S. Legal Permanent Residence includes but is not limited to the following documents:
a) Copy of the front and back of the I-551, Permanent Resident Card (green card)
b) Copy of the foreign passport which includes a copy of the biographic page, the I-551 stamp issued by the U.S. Consulate and the page showing admission to U.S. as a permanent resident
5. Proof of relationship:
i. If filing for spouse, a copy of the marriage certificate (with English translation, if necessary)
ii. If filing for a parent, child, or brother/sister, a copy of the birth certificate(s) and/or marriage certificate(s) tracing the relationship
iii. If filing for an adopted child, a copy of the adoption decree
iv. If filing for a step-child/step-parent, a copy of the marriage certificate and appropriate birth certificate(s)
6. If filing for a foreign national spouse:
i. Either the petitioner or the beneficiary (the foreign national spouse) were previously married, submit copies of the documents showing that all prior marriages were legally terminated (court certified copies of the petitioner’s and/or intending immigrant’s divorce documents or death certificate of the prior spouse)
ii. Form G-325A is completed by the U.S. citizen spouse (signed and dated) with a passport style photo attached
iii. Form G-325A is completed by the foreign national spouse (signed and dated) with a passport style photo attached
iv. Evidence of a bona fide marriage (including but not limited to pictures, joint ownership of property, lease in both names, etc.)
B. Submitting The Petition
Upon compiling the form, supporting documents and filing fee, the petition package should be mailed to the appropriate “Lockbox” in Chicago. Petitions are no longer sent directly to a service center but are routed there by the lockbox.
C. After Mailing The Petition
Generally, within a few days after the U.S. citizen petitioner sends the petition to the USCIS lockbox, he or she will receive a Form I-797, Notice of Action (“receipt notice”) indicating that the USCIS has received the I-130 application and indicating the service center the petition was routed to. If the petitioner does not receive a receipt notice within one to two weeks of filing the petition, contact USCIS to follow up.
If the petition package is missing any documents or the service center needs further clarification or additional documents, it will use a “Request for Evidence” detailing the additional documents or information needed for the case to proceed.
D. Approval of The Petition
Once the I-130 immigrant visa petition is approved, the USCIS service center that processed the petition will send the U.S. citizen petitioner another I-797, Notice of Action (“approval notice”) letter indicating the approval. The service center will then forward the approved petition to the National Visa Center (unless the petition is for an immediate relative who is in the U.S. and it was filed with an application for adjustment of status (see STEP 2 below).
E. Processing Time
The time it takes the USCIS service center to process the I-130 depends on what preference category the foreign national relative falls into. The lower the priority of the preference category (i.e., 3rd or 4th preference) the longer it takes for processing. Since visa numbers are not immediately available these petitions receive lower priority for processing.
STEP 2: Adjustment of Status If The Beneficiary Is Already Inside The U.S.
If the beneficiary (the person form whom the immigrant petition is filed) of the I-130 petition is in the U.S. when the petition is approved and a visa number is available, he or she may be able to file for Adjustment of Status using Form I-485, Application to Adjust Status.
NOTE: To adjust of status inside the U.S. the beneficiary must meet certain conditions: they must have entered the U.S. legally and must have maintained their status throughout their stay in the U.S. There are certain limited exceptions to these provisions for immediate relatives.
Click here to learn more on Adjustment of Status.
STEP 3: Consular Processing If Beneficiary Is Outside The U.S.
If the beneficiary of the I-130 immigrant visa petition is outside the U.S. or has chosen Consular Processing when the petitions is approved and a visa number is available, he or she must complete consular processing and obtain their immigrant visa at a U.S. Consulate abroad before they can enter the U.S. as a legal permanent resident.
NOTE: The Beneficiary of the I-130 petition cannot enter the U.S. unless he or she has an immigrant visa or has obtained another type of non-immigrant visa.
Click here to learn more on Consular Processing of immigrant visas.
I-130 For Dependents of The Alien Relative
Only U.S. citizens and Permanent Residents can file an immigrant petition for their direct relatives. Dependents of only some of those relatives, however, may immigrate with the foreign national.
A. Dependents of Immediate Relatives
Each immediate relative of a U.S. citizen (spouse, children under 21 and parents- those who are not subject to visa quota availability) must have a petition filed on his or her behalf by the U.S. citizen petitioner. Dependents of the foreign relative (e.g., minor children of the parents or children of the spouse) cannot be included in the petition or “follow-to-join”. The dependents must have a separate petition filed on their behalf by the U.S. citizen petitioner or by the immediate relative beneficiary after he or she becomes a permanent resident.
B. Dependents of Preference Relatives
Dependents (spouse and children under 21) of beneficiaries who are in a preference category (spouse, children under 21 and unmarried sons and daughters of a legal permanent resident and unmarried/married children over 21 and brothers/sisters of U.S. citizens) are eligible for derivative status or are eligible to “follow-to-join.” This means that they are eligible to receive an immigrant visa in the same preference category as the relative and be able to immigrate with the principal relative without having to be the beneficiary of a separate petition.
- If the petitioner is a legal permanent resident and files for his or her spouse, the spouse’s unmarried children will be eligible for an immigrant visa as long as they are under 21 (real age or CSPA age) when the visa becomes available. If, however, the child is over 21, a new petition will have to be filed for the son or daughter. If the petition is filed by the same petitioner, the son/daughter’s I130 petition will be able to retain the priority date of the first petition.
- If the petitioner who was a permanent resident at the time an I130 petition was filed for a spouse and/or children under 21 becomes a citizen, the petition is automatically upgraded to an immediate relative petition. When this occurs, a separate petition must then be filed for the child of the foreign national spouse because he or she will no longer be permitted to “follow-to-join”. This may have serious repercussions if the son or daughter was protected by CSPA as he or she loses this protection if a new petition is filed.
I-130 Petition Possible Problems
A. Missing Documents
All petitions are screened by USCIS when they are initially submitted to see that all required forms, fee and initial supporting documents are included. If the initial screening finds the petition to be deficient, it may be returned to the petitioner depending on the deficiency.
At the time of the final review, if the reviewing officer has questions or needs additional supporting documentation, a Request for Evidence (RFE) will be issued. The RFE will state what questions the officer has and what additional information documents are needed to complete the review of the petition. USCIS is required to give respondents at least 84 days to respond and an additional 14 days if the information or documents must be obtained from abroad.
If important initial documentation or information is missing, or if there is an indication that there may be fraud, USCIS may issue a Notice of Intent to Deny (NOID) in lieu of an RFE. In most instances, USCIS gives respondents only 30 days to respond to a NOID.
B. Denial of The I-130 Petition
If a petition is denied, the petitioner has the right to have the petition reopened/reconsidered and/or appealed. When a decision is issued denying an I130 petition, USCIS must give the specific reasons for the denial. It must also give the petitioner instructions on where and how to file a motion to reopen/reconsider or appeal. You have the right to have an attorney represent you on either.
1. Motion to Reopen/Reconsider
If the petitioner wishes to have the decision reviewed once more by the service center that rendered the decision and/or the petition has additional evidence that can be submitted, a Form I-290B, Notice of Appeal or Motion must be filed with USCIS in order to submit a Motion to Reopen and/or Reconsider (MTR). Additional or new evidence in existence at the time of filing or containing information that was in existence at the time of filing can be submitted with an MTR.
a. The I-290B must be submitted within 30 days of the date of the decision (or when the decision is mailed, if applicable).
b. It must contain a clear statement of why the petitioner thinks the decision is erroneous. The petitioner can also submit a brief with the reasons why the decision was wrong, citing any law that supports the position or including new evidence.
c. The brief, if filing one, must be submitted with the I-290B.
d. The Form I-290B is filed with the appropriate filing fee and brief, if applicable, to the USCIS Phoenix Lockbox and will be forwarded to the service center or office that rendered the decision.
If the Petitioner wishes to have the decision reviewed by a higher decision-making body or an MTR has already been submitted and denied, Form EOIR-29 Notice of Appeal to the Board of Immigration Appeals from the Decision of a USCIS Officer must be filed with the Board of Immigration Appeals.
a. The EOIR-29 must be submitted within 30 days of the date of the decision (not the date you receive the decision).
b. It must contain a clear statement of why the petitioner thinks the decision is erroneous. The petitioner can also submit a brief with the reasons why the decision was wrong, citing any law that supports the position
c. The brief, if filing one, can be submitted with the EOIR-29, or within 30 days of filing the EOIR-29.
d. The EOIR-29 is filed with the appropriate fee and brief, if applicable, to the USCIS office that made the decision on the case. The EOIR-29 should not be filed directly with the BIA.
When the USCIS office that made the decision to deny the I-130 receives a MTR or appeal, that office will review the case based on the appeal and any brief that is submitted with it. In the case of an MTR, USCIS can also review any additional evidence submitted with the MTR. The USCIS can reverse their decision and approve the I130 petition or uphold their decision. In the case of an MTR, if they uphold their decision, a new decision affirming the denial of the petition is written and sent back to the petitioner. In the case of an appeal, the file must be forwarded to the BIA. Once the BIA decides on the case, the petitioner will receive a notification with the decision. A decision from the BIA can take 6 months or longer.
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