Securing a green card via a family sponsor entails the Petitioner, either a US Citizen or US Permanent Resident, initiating a petition for their spouse, parent, child/son/daughter, or sibling. This petition is filed using Form I-130, known as the Petition for Alien Relative. Regardless of the relationship basis for the petition, the following list highlights common pitfalls that could result in denial.
- Incorrect or missing information
Whether you choose to paper file or file online, filling out the I-130 requires careful consideration to ensure that all the information that you complete is accurate. Incorrect or missing information can lead to a rejection or denial. Pay close attention to what information the question is requesting and ensure that you properly sign the form.
- USCIS updates
USCIS will periodically update the forms and fees for the various petitions/applications. If you are paper filing the petition, it is vital that you submit the correct version of the form and provide the correct payment to USCIS. Providing USCIS with an outdated form or fee will lead to USCIS rejecting the petition.
- Ineligibility of the Petitioner and/or Beneficiary.
Check the eligibility requirements prior to filing. If the Petitioner and/or Beneficiary are not eligible to file, this could lead to an I-130 denial. For example, to file for your parent or sibling you must be a U.S. citizen, whereas to file for a spouse/child you only need to be a lawful permanent resident (Green card holder).
- Inability to prove necessary family relationship.
Some relationships are easier to prove than others. When establishing a marital relationship, you must provide proof of the marriage and that the relationship is bona-fide. A bona-fide marriage is one entered for the right reasons and not purely to obtain a green card. The latter is considered to be fraudulent.
Establishing the marriage is as simple as providing a valid marriage certificate. However, the bona-fide marriage documentation will vary based on the couple. Evidence can include joint accounts, photos, joint tax returns, etc.
For parent petitions, the Petitioner’s birth certificate must be submitted to establish the relationship. However, we often see issues when the country of birth does not require the birth to be registered. USCIS takes the view that birth certificates that are registered late (e.g. years of months later) or missing registration information are generally given less reliability and weight compared to those registered close to birth. We have seen this issue especially with those born in Nepal. Although Nepal requires birth registration very few parents register their children’s births at the time, and this can cause issues at the I-130 stage. In these cases, the Petitioner may consider submitting secondary evidence or submitting to a DNA test.
- Ignorance of the law or special rules.
If you are not filing through an Attorney, you need to be aware of any special rules/regulations that could be applicable to your case. For example, a lawful permanent resident who receives a green card through marriage and then divorces should wait at least 5 years before petitioning for a new spouse. To learn more about this 5-year rule please visit our previous blog:
https://patellegal.com/blog/a-case-study-on-eb-1a-approval/
- Criminal convictions of either Petitioner or the Beneficiary.
Although the Beneficiary is the one seeking the Immigration benefit the crimes of the Petitioner may still be relevant and could result in an I-130 denial. Offenses involving minors will likely impact the Petitioner’s ability to file an I-130 although there is an exception for those who do not pose a threat to the immigrant.
Beneficiaries on the other hand may not be the beneficiary of an I-130 if they have committed certain crimes, including but not limited to the following:
- Crimes of moral turpitude.
- Controlled substance offenses.
- Those convicted of two or more offenses and received aggregate sentences of 5 years or more.
- Drug trafficking.
- Inconsistencies at the interview stage
For those filing an I-130 where the Beneficiary is in the US the Beneficiary may be eligible to adjust their status, in which case they will need to file Form, I-485, adjustment of status. For those outside of the US, it will be necessary to go through Consular processing. Either way, if the petition was filed for a spouse, the Beneficiary will need to attend an interview. If in the US, this interview will be with the Petitioner. This is where the officer needs convincing that the marriage is real. Inconsistent answers could lead to the Petitioner and Beneficiary being interviewed separately and could ultimately lead to the denial of the I-130.
For more information on preparing for the interview, please see our website: https://patellegal.com/blog/what-to-expect-during-a-marriage-based-interview/
- Procedural errors
It is not uncommon for USCIS to require more information. They do this by issuing a Request for Evidence also known as an RFE. Failure to reply to the RFE by the deadline or failure to show up at the interview will both result in a denial of the I-130 petition.
Conclusion
The purpose of this article is not to tell you that you need hire an Attorney to file the I-130. I am not the type of Attorney that tells potential clients that they need to hire me. I tell everyone the same thing. It depends on your comfort level. Some people file their own taxes while others hire professionals.
However, if you are going to file the I-130 without legal representation you need to do the proper research and make sure that you complete the form accurately. Some Attorneys offer a service to review the filing before you submit it for a reduced fee. If you don’t want to hire an Attorney, consider having one review everything before you submit it. They may catch costly mistakes before filing the petition.
If you have already received an I-130 denial all hope is not lost. You may be able to file a Motion to get the case reopened and/or reconsidered or file an appeal. Additionally, you always have the option to re-file the I-130. If you are unsure what to do consult with an experienced Immigration Attorney.
If you have any questions about filing the I-130 please contact PLG Partner Chris Prescott at cprescott@patellegal.com.