Guide to Form I-130, Petition for Alien Relative, on Behalf of a Spouse

This Guide is about the Form I-130, Petition for Alien Relative. Such a petition is the first step for a U.S. citizen to sponsor a husband or wife for lawful permanent resident (LPR) status, colloquially known as “green card” status.

1. Introduction

1.1 Scope of This Guide

After the I-130 is approved, the next step will be either to apply for an immigrant visa at a U.S. Consulate abroad or, for a noncitizen physically present in the U.S., to file with U.S. Citizenship and Immigration Services (USCIS) a Form I-485, Application to Adjust Status. See our separate Guide to Immigrant Visas for a comparison of those two options and for an overview of the immigrant visa process.

There are various other related topics outside the scope of this Guide which our firm can provide advice on:

  • Special provisions for immigration of widow(er)s of U.S. citizens[1], self-petitioning battered spouses of U.S. citizens[2], and spouses of Armed Forces who died in combat.[3]
  • Whether a person who is the beneficiary of an I-130 or has a pending immigrant visa application may travel to the U.S. on another visa, such as a B-1/B-2 (visitor for business or pleasure) visa. There is no strict prohibition on such travel, although it can be complicated by the immigrant intent implied by the I-130.[4]
  • Other strategies, besides filing an I-130, to apply for a green card or other visa for a spouse or fiancée. Talk with your lawyer about that to determine which is best for your family. 

1.2 Conditional Resident Status

One condition of LPR status that needs to be mentioned early on is that a person granted LPR status on the basis of a marriage that is less than two years old at the time the status is granted will be a conditional resident.[5] The condition is that the conditional resident and the U.S. citizen must jointly file a Form I-751, Petition to Remove the Conditions of Residence, within 90 days of the second anniversary of the date conditional residence was granted.[6] The Form I-751 must be accompanied by evidence of valid marriage.[7]

Conditional residence can be terminated by USCIS if before the second anniversary of the grant of conditional residence USCIS determines that: (1) the marriage was judicially annulled or terminated other than through death of a spouse; (2) the marriage was entered into for purpose of procuring the conditional resident’s entry for a fee, or other consideration was given for filing the I-130; or (3) the conditional resident has failed to file the I-751 timely, unless good cause is shown.

There are circumstances under which USCIS can waive the requirement that the I-751 be filed jointly by the conditional resident and the U.S. citizen: (1) the conditional resident would encounter extreme hardship if deported; (2) the qualifying marriage was entered into in good faith and then terminated; (3) although the qualifying marriage was entered into in good faith, during the marriage the conditional resident was battered by or subjected to extreme cruelty by the U.S. citizen.[8]

2. Form I-130 Requirements

A U.S citizen’s petition on behalf of a spouse must meet the following requirements, both at the time of filing and at the time that permanent resident status is granted.[9]

2.1 The Petitioner Must Be a U.S. Citizen

The petitioner may either have acquired citizenship at birth or have naturalized.

2.2 The Petitioner Must Not Have Been Convicted of Specified Offenses against a Minor

A U.S. citizen who has been convicted of any “specified offense against a minor” is prohibited from filing a family-based immigrant petition on behalf of any beneficiary, unless the Secretary of Homeland Security determines, in her sole and unreviewable discretion, that the petitioner “poses no risk to the beneficiary.”[10]

USCIS will perform a check to investigate whether the petitioner has been convicted of any offense which may count as one of these specified offenses.[11]

If an Interagency Border Inspection System (IBIS) check reveals a hit for any offense that is or potentially may be a specified offense, USCIS will schedule the petitioner for fingerprints and issue a “request for evidence” for certified copies of all police records and a court disposition.[12]

2.3 The Marriage Must Be Legal and Not Contrary to U.S. Public Policy

To qualify as a spouse, the marriage must be legal under the law of the place where the marriage occurred.[13]

If you married abroad, there is no requirement that you remarry in the United States.[14]

It’s important to distinguish between “void” marriages and “voidable” marriages. A “void” marriage is one that is illegal. A “voidable” marriage is one that is technically defective but may be made legal by a subsequent act of the parties.[15]An I-130 can’t be approved for a void marriage but can be for a voidable marriage.[16]

In the U.S., each state has its own marriage law. For example, in California, marriages between certain relatives and bigamous marriages are void.[17] In contrast, marriages between minors without court consent are voidable unless the parties freely cohabit after becoming adults.[18] Marriages where either party was of unsound mind are voidable unless, after coming to reason the parties continue to cohabit as husband and wife.[19] Marriages consented to by fraud or force are voidable unless the parties later freely cohabit as man and wife.[20]

Under Chinese law, a marriage is “void” if one party commits bigamy; the man and the woman are relatives by blood up to the third degree of kinship; before marriage, one party is suffering from a disease which is regarded by medical science as rendering a person unfit for marriage and, after marriage, a cure is not effected; or the legally marriageable age is not attained.[21] In contrast, in China, a marriage entered into under coercion is merely voidable.[22]

If a state or country recognizes common law marriage, such marriage may be valid for immigration purposes. A “common law marriage” is a marriage that is recognized by a state or country even though there has been no government act recognizing the marriage (such as issuance of a marriage certificate). Typically, a common law marriage involves (1) entering into an agreement to be man and wife; (2) followed by cohabitating as man and wife; and (3) holding each other out professedly and publicly as spouses.[23]

A marriage ceremony is not valid if the parties were not physically present unless the marriage was consummated.[24]

Also, the marriage must not be contrary to U.S. public policy. This issue has arisen in cases of incestuous marriage. Even if a marriage between parties related by blood is recognized as valid where the marriage took place, it may be invalid as contrary to public policy if the marriage would be illegal in the state where the parties intend to reside.[25]

For a marriage to be valid, prior divorces must be final and valid under the laws of the jurisdiction granting the divorce.[26]

In an historic 2013 ruling, the U.S. Supreme Court has held that same-sex spouses are eligible for the same immigration law benefits as heterosexual spouses. United States v. Windsor held that Section 3 of the Defense of Marriage Act (DOMA), a federal law prohibiting the U.S. Government from recognizing same-sex marriages, is an unconstitutional exercise of federal authority and a violation of the equal protection guarantee of the U.S. Constitution.[27]

2.4 The Marriage Must Have Been Valid at Its Inception

In General

The marriage also must be valid, meaning that the parties had to intend to establish a life together at the time of the marriage.[28] USCIS will assess the intent of the parties by reviewing their conduct before and after marriage. For example, do they live together and commingle their finances? Cohabitation and consummation of the marriage are important evidence but not absolute requirements.[29] The parties will be required to document the validity of their marriage. Documents such as insurance policies, property, leases, income tax, and bank account records may be relevant. Inconsistent statements made by the couple may be the basis for denial.[30]

Sham Marriages

Marriages of convenience,[31] paper marriages, marriages that occur only because the green card is the sole objective are illegal. The U.S. government despises phony marriages and will use every legal weapon in its arsenal to prosecute the both parties criminally[32] and to deport the foreign spouse. According to USCIS, some factors that may indicate a sham marriage are[33]:

  • Large disparity of age;
  • Inability of petitioner and beneficiary to speak each other’s language;
  • Vast difference in cultural and ethnic background;
  • Family and/or friends unaware of the marriage;
  • Marriage arranged by a third party;
  • Marriage contracted immediately following the beneficiary’s apprehension or receipt of notification to depart the United States;
  • Discrepancies in statements on questions for which a husband and wife should have common knowledge;
  • No cohabitation since marriage;
  • Beneficiary is a friend of the family; and
  • Petitioner has filed previous petitions in behalf of aliens, especially prior alien spouses.

Failure to Fulfill the Marital Agreement

However, if the foreign spouse has “failed or refused to fulfill the marital agreement” which was the basis for LPR status, the foreign spouse is subject to deportation from the U.S.[34] Fulfilling the marital agreement refers to taking at least some steps, such as consummating the marriage, to make a life together.[35]

2.5 No Prior Sham Marriage or Sham Divorce

No immigrant visa petition (family or employment-based) can be approved for a foreign national who previously attempted to gain LPR status on the basis of a marriage that was entered into to evade immigration laws, or if the foreign national attempted or conspired to enter into a marriage for purpose of evading the immigration laws.[36] This bar applies even if no marriage was ever finalized and if no immigration petition or application was ever filed.

Also, USCIS will not recognize sham divorces orchestrated for purposes of obtaining a visa or other benefit under the immigration laws.[37]

2.6 The Marriage Has Not Been Terminated

A divorce, annulment, or legal separation[38] counts as termination of the marriage for purposes of eligibility to immigrate based on the I-130.

But so long as the marriage was valid at inception, the fact that the parties are no longer living together or that the marriage is no longer viable is not a basis for denial or revocation of the I-130 for denial of admission to the United States as an immigrant.[39]

3. Form I-130 Procedures

3.1 Jurisdiction

Proper jurisdiction for stand-alone I-130 petitions (i.e, those not filed with a Form I-485, Application to Adjust Status) is described below.[40]

Jurisdiction often depends on the petitioner’s “residence,” which means the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent.[41] The USCIS Beijing and Guangzhou Field Offices require evidence of residence in the form of a residence permit, work visa, student visa, or other long-term official authorization permitting you to live in China.[42]

If the petitioner moves while the I-130 is pending, USCIS may transfer the case to the field office with jurisdiction over the petitioner’s new home. For more on this point, see Part 3.5 below.

Petitioners Residing in the U.S.

Petitioners “residing” in the U.S. should mail their petition to either the Chicago Lockbox or the Phoenix Lockbox, depending on their state of residence.

Petitioners Residing in a Country with a USCIS International Office

Petitioners residing outside the United States in a country with a USCIS international office may choose to file and have their case adjudicated there, or file with the Chicago Lockbox. China has two USCIS offices:

  • The USCIS Beijing Field Office accepts I-130s for petitioners residing in Beijing, Shanghai, Tianjin, Hebei, Jilin, and the Northeast (Heilongjiang, Jilin, Liaoning, and Shanxi).
  • The jurisdiction of the Guangzhou Field Office includes: Anhui, Chongqing, Fujian, Gansu, Guangdong, Guangxi, Guizhou, Hainan, Henan, Hubei, Hunan, Jiangsu, Jiangxi, Ningxia, Qinghai, Shandong, Shaanxi, Sichuan, Xinjiang, Tibet (Xizang), Xiamen, Yunnan and Zhejiang.

Petitioners Residing in a Country without a USCIS Office

If the petitioner resides outside the United States in a country without a USCIS international office, the petition should normally be filed by mail with the Chicago Lockbox. A receipt notice will be issued by mail within about two weeks of filing. Current processing times are posted at www.uscis.gov.

But a U.S. Consulate may accept and adjudicate the I-130 if the petitioner makes a written request with supporting evidence showing that the I-130 “requires immediate processing due to exceptional circumstances.”[43] The following are examples:

(a) U.S. Military deployment or transfer: A U.S. service member overseas, assigned to non-military bases or on temporary duty orders, becomes aware of a new deployment or transfer with very little notice. This should be an exception to the regular relocation process for most service members.

(b) Medical emergencies: A petitioner or beneficiary is facing an urgent medical emergency that requires immediate travel. This includes if the petitioner or beneficiary is pregnant and delaying travel may create a medical risk or extreme hardship for the mother or child.

(c) Threats to personal safety: A petitioner or beneficiary is facing an imminent threat to personal safety.

(d) Cases close to aging out: A beneficiary is within a few months of aging out of eligibility.

(e) Cases where the petitioner has recently naturalized: The petitioner and family have traveled for the immigrant visa interview but the petitioner has naturalized and the family member(s) require a new, standalone petition.

(f) Adoption of a child: A petitioner who has adopted a child locally and has an imminent need to depart the country. This exception should only be considered if the child has been in the petitioner’s legal and physical custody for at least two years and the petitioner has a full and final adoption decree on behalf of the child.

(g) Short notice of position relocation: A U.S. Citizen petitioner, living and working abroad, who receives a job relocation within the same company or subsidiary to the United States, or an offer of a new job in the United States with very little notice.

(h) Other: Other emergency situations, as determined by the Consular Section. Additional requirements for the Consulate to accept the case include:

  • The petitioner resides in the consular district.[44]
  • The petitioner and beneficiary are physically present in the consular district, and the beneficiary is able to remain in the country for the time it normally takes to process the visa.[45]
  • It is “clearly approvable.”[46]

Upon receiving the petitioner’s request, if the consular officer is persuaded that the case meets the requirements, the consular officer will contact the regional USCIS Field Office Director (or designee) by phone or email to ask whether the Consulate may accept the case.[47] USCIS should respond within 1-3 business days.[48] USCIS has discretion to decide the matter as it sees fit.[49] USCIS approves most requests made by consular officers. The consular officer will notify the petitioner of the decision.

3.2 Documents to Be Filed

The documents filed with USCIS will be different in each case, but typically they will include:

  1. USCIS InfoPass appointment letter (if filed at USCIS Beijing or Guangzhou)
  2. Cover letter with index of exhibits and any key legal argument[50]
  3. I-130 filing fee of $535.[51]
  4. Form G-28, Notices of Appearance as Attorney, on behalf of each spouse[52]
  5. Form(s) G-1145, E-Notification of Petition Acceptance[53]
  6. Form I-130, Petition for Alien Relative
  7. If you are filing for your spouse, they must complete a Form I-130A, Supplemental Information for Spouse Beneficiary. “If your spouse is overseas, Form I-130A must still be completed, but your spouse does not have to sign” it.[54]
  8. Two passport-style photos of each spouse.[55] For cases filed with a consular officer, the photos must have been taken within 30 days of the date of the application.[56]
  9. Evidence of the petitioner’s U.S. citizenship, such as a birth certificate, naturalization certificate, and/or unexpired U.S. passport issued for a full ten-year period[57]
  10. Evidence of the petitioner’s residence within the USCIS office jurisdiction, if the I-130 is filed abroad. (In China, this is typically a residence permit in the petitioner’s passport).
  11. The beneficiary’s passport, if filed with USCIS in China[58]
  12. Marriage certificate. (For U.S. marriages, submit a certified copy of the marriage certificate.[59] For China marriages, submit both the marriage booklet and a notarial marriage certificate.)[60]
  13. Proof of termination of prior marriages by either spouse. (For U.S. divorces, submit a certified copy of the court’s final judgment. For China divorces, submit a notarial divorce decree and either the divorce booklet issued by the civil affairs office or the court decree).
  14. The beneficiary’s birth certificate may be required by USCIS Guangzhou, although they post contradictory instructions on this point.[61]
  15. Proof of any name change by either the petitioner or the beneficiary
  16. The beneficiary’s China national ID card and household register (hukou) are not required documents but we recommend that clients bring them for cases filed at the USCIS Beijing or Guangzhou office.
  17. Evidence of the validity of any marriage on which basis the I-130 is filed
  18. Certified translations of any documents in a foreign language[62]

Signature: The forms should be signed by the petitioner and beneficiary as indicated. However, a parent or legal guardian may sign for a person who is less than 14 years old. A legal guardian may sign for a mentally incompetent person. By signing the application or petition, the applicant or petitioner, or parent or guardian certifies under penalty of perjury that the application or petition, and all evidence submitted with it, either at the time of filing or thereafter, is true and correct.[63]

Beneficiary’s Name / Name Change: The beneficiary’s name as shown in the petition should be his or her full legal name as shown in the passport to which the immigrant visa will be added. Later, the immigrant visa[64] and then the green card will be issued in the passport name. For a PRC beneficiary who wants to legally change his or her surname to match the U.S. spouse’s[65]: (1) If the U.S. spouse’s surname is Chinese, the PRC beneficiary can amend his or her hukou to reflect a new Chinese surname then get a PRC passport with that name; or (2) If the U.S. spouse’s surname can’t be written in pinyin (e.g., “Smith” becomes 史密斯 on the hukou and Shimisi in pinyin on the passport), then mending the hukou isn’t an option. The potential solutions may be: (1) Wait until the green card is issued, then apply to USCIS to have the green card issued with the U.S. spouse’s surname.[66] At that point, the PRC passport can also be amended to show the U.S. spouse’s surname as an “other name used”; or (2) Wait until you become a U.S. citizen, at which point you can change your name, getting the naturalization certificate and U.S. passport with the new name.

Unavailability of relationship evidence: If evidence of the relationship (e.g., a birth, marriage, or divorce certificate) does not exist or cannot be obtained, the petitioner must demonstrate this and submit secondary evidence. If secondary evidence also does not exist or cannot be obtained, the petitioner must demonstrate this, and submit two or more affidavits, sworn to or affirmed by persons who are not parties to the petition who have direct personal knowledge of the event and circumstances.[67]

Submission of copies:

  • For I-130s filed with a USCIS Service Center, copies of supporting documents should be submitted, although USCIS may later ask to check the copies against the originals. For I-130s filed with USCIS Beijing, the petitioner should file copies of supporting documents and bring the originals for USCIS to check.[68]
  • For I-130s filed with a U.S. consular officer, originals of supporting documents are required.[69]

3.3 Procedures for Filing through a USCIS Lockbox

As mentioned above, petitioners “residing” in the U.S. should mail their petition to either the Chicago Lockbox or the Phoenix Lockbox, depending on their state of residence.

When the petition arrives at the lockbox, USCIS will decide either to accept the petition as being properly filed or reject it as improperly filed (for example, if a required form, signature, or the filing fee is missing). If the petition is accepted, USCIS will mail out a receipt notice with the USCIS case number, which allows tracking of the case status online.

From there, the petition will be assigned to a USCIS Service Center for adjudication. Currently, I-130s are being assigned to the California, Potomac, Texas, and Vermont Service Centers.[70]

3.4 Procedures for Filing an I-130 at USCIS Beijing or Guangzhou

Here’s a summary of the procedures for filing an I-130 at the USCIS Field Office in Beijing[71] or Guangzhou.[72] Note that this is not an interview, although the USCIS clerk may ask you some questions about your documents (e.g., “Have you been divorced? If yes, did you bring the divorce decree?”):

Appointment or Walk-In: Appointments can be made using USCIS InfoPass.[73] For Beijing, appointments are required. For Guangzhou, they are recommended. Appointments are available Tuesday and Thursday afternoons. For Guangzhou, petitions may be filed on a walk-in basis during customer service window hours of 8:30 – 10:30 a.m. every Friday, but expect considerably longer wait times at USCIS.

Who Should Go: Local policy requires the petitioner to file in person. The beneficiary and attorney may also attend. (In a rare case, it can be helpful for the beneficiary to attend in case there is a minor glitch such as a missing signature that the beneficiary can resolve without delay.)

Timing: We recommend you arrive 15 minutes before your scheduled appointment (or not later than 10:00am on Friday on a walk-in basis in Guangzhou) because it can take that long to go through security and walk to the USCIS office inside the compound. Be prepared for the appointment to take 60 to 90 minutes on average.

USCIS Office Location:

Entering the USCIS Office: You should not need to stand in a line with visa applicants outside the consular compound. To enter the compound, you’ll need to show your passport and appointment notice (if applicable) to the Chinese diplomatic police posted outside the compound and then to the staff at the security checkpoint inside the compound. Proceed through the metal detector. You won’t be able to bring any electronics or large bags inside, so carry your documents in a folder or small bag. Follow the signs to the USCIS office (in the basement in Beijing; on the third floor in Guangzhou).

Filing Your Petition: Upon entering the USCIS office:

  • Beijing: Wait for your name to be called at about your appointment time.
  • Guangzhou: Let the staff know you’ve arrived and ask whether to wait in line or wait for your name to be called.

When it’s your turn, give the USCIS clerk the I-130 packet our law firm has prepared for you. The clerk will check the packet to make sure it’s complete. The clerk may also want to inspect originals of some documents in the packet, such as the passports, marriage certificate, and evidence of termination of prior marriages. So, make sure to bring any originals you have of documents in the packet. (Obviously, there is no “original” for some documents, like emails or copies of tax returns). In the unlikely event that the clerk wants to keep any original, ask what arrangements will be made for it to be returned to you later.

Accept or Reject: The USCIS employee should then tell you if your petition will be accepted or rejected. This is not the same thing as approved or denied. “Accept” just means that the employee will take it so that an officer can later adjudicate the petition. “Reject” just means that the employee is not willing to accept your petition today, perhaps because the employee thinks you are missing a required document or because the employee thinks you are filing in the wrong USCIS office. You should know that the USCIS employee at the counter is not an expert on the law and our firm has had petitions rejected for various improper reasons.[74] If your lawyer is not present, in the unlikely event that you have a problem, please politely ask to speak with a supervisor to confirm any doubts. If your doubts are not resolved, you can ask the supervisor’s name and then step outside the consular compound to call our firm. Our firm may be able to resolve any unexpected problem without delay by phoning the supervisor.

Payment: Assuming that the USCIS employee tells you your I-130 will be accepted, he or she will give you instructions to go to the nearby cashier to pay the filing fee. You’ll need to pay in cash with USD or the RMB equivalent (at the Embassy’s exchange rate listed here: http://ustraveldocs.com/cn/index.html?firstTime=No), or with a credit card (Visa, MasterCard, AmEx, Diners Club, or Discover). Checks (personal, traveler’s, certified, etc.) and money orders are not accepted. The cashier will give you a two-part receipt. Give one part to the USCIS office. The other is for you to keep. Once you’ve done this, you should be ready to leave.

Cashier’s Receipt: Please keep safe the cashier’s receipt. This is the only evidence you will have that you’ve filed the I-130. (Give our firm a copy for your file too).

Debrief: As soon as you exit the consular compound, please contact our firm to “debrief” so that we can confirm the process went smoothly or take any needed follow-up steps.

Adjudication of the I-130: Over the years, USCIS processing times have usually been 1 to 3 months, although timing can vary. It’s possible that USCIS will contact you at either (a) the petitioner’s address listed in item B1 of the Form I-130, or (b) the petitioner’s email listed in the Form G-1145, E-Notification of Petition Acceptance. Watch that address and that email account for request to submit additional evidence or to come in to the office for an interview. Let our firm know if you receive any notice or if you change your address so we can notify USCIS.

3.5 Adjudication

Adjudication by USCIS

Disclosure of Petitioner’s Criminal History to Beneficiary: USCIS will release to the beneficiary copies of any record showing that the petitioner has been convicted of a violent crime or sex crime. If the beneficiary lives within the jurisdiction of a USCIS domestic or overseas office, the beneficiary will be called in for an interview. If the petition has already been approved and the beneficiary is abroad, USCIS will ask DOS to notify the beneficiary.[75]

Interview: USCIS may require an interview of the petitioner and/or beneficiary.[76]

  • Cases filed with USCIS Service Center: Interviews are needed only rarely. If so, the case will be transferred to a local USCIS office for interview.
  • Cases filed with USCIS Beijing or Guangzhou: Interviews are more common for USCIS Beijing or Guangzhou. Most commonly, interviews focus on the validity of the marriage that is the basis of the petition.

Security measures: In adjudicating the I-130, USCIS will run a TECS/IBIS check and an FBI name check on the petitioner and beneficiary.

Investigation: USCIS may investigate the petition.[77] For example, in connection with a petition for a child, USCIS may require a blood test of the parents and child.[78]

Transfer: A case pending with one office or officer may be transferred to another officer or jurisdiction without action for several reasons, such as: (a) the case was misfiled and jurisdiction belongs to another office; (b) the applicant moved to another jurisdiction; or (c) a case pending with a Service Center appears to warrant a personal interview in a local office. “The transfer of a case should be carefully considered before action…. Cases being transferred … should be reviewed by a supervisory officer before the transfer is initiated to ensure that the matter cannot be readily resolved…. Such a transfer results in a significant additional workload for USCIS. While this may be a very valuable and effective tool in certain circumstances, it should not be abused–used as a way of ‘dumping’ difficult cases.”[79]

Burden of proof: The burden of proof is on the petitioner, who must prove by the preponderance of the evidence that the petition meets each of the legal requirements.[80]

Decision: USCIS should notify both the petitioner and the attorney of its decision on a petition.[81]

  • Approval: If the evidence establishes eligibility, USCIS must approve the petition. This is not a matter left to USCIS discretion.[82]
  • Denial: If the evidence establishes ineligibility, the petition must be denied. USCIS should notify the petitioner of the specific reasons for denial.[83]
  • Missing initial evidence: If the petitioner fails to file all required initial evidence, the petition may be denied, or USCIS may request that the missing evidence be submitted within a period not exceeding 12 weeks, after which USCIS will decide the petition.[84]
  • Additional evidence: If the required initial evidence has been submitted but that evidence doesn’t establish eligibility, USCIS may deny the petition for ineligibility, request additional evidence be submitted within a period not exceeding 12 weeks, or notify the petition of USCIS’ intent to deny the petition and allow a response within a period not exceeding 30 days, after which USCIS will decide the petition.[85]

Adjudication by a Consular Officer

If a consular officer has accepted an I-130 for adjudication, the officer will need to review the petition to verify the relationship between the parties. [86]

The officer will then send the petitioner’s biodata to the National Visa Center (NVC) to do the Adam Walsh check for certain crimes by the petitioner against minors.

If for any reason the case is not “clearly approvable,” it will be forwarded by the officer to the regional international USCIS field office for adjudication.[87] A consular officer lacks power to deny the petition.[88]

Processing Times and Requests for Expedited Adjudication

Check with our firm for current processing times. USCIS review​s​ all​ expedite requests on a case-by-case basis and requests are granted at the discretion of the office leadership.​ The burden is on the petitioner to demonstrate that one or more of the e​xpedite criteria have been met.​​

  • Severe financial loss to company or ​person​;​
  • Emergency situation;​
  • Humanitarian reasons;​
  • Nonprofit organization whose request is in furtherance of the cultural and social interests of the United States​;​
  • Department of Defense or ​n​ational ​i​nterest ​s​ituation (These particular expedite requests must come from an official U.S. government entity and state that delay will be detrimental to the government.);​
  • USCIS error; or​
  • Compelling interest of USCIS.

3.6 Administrative Review

If the I-130 filed on behalf of an immediate relative is denied, it is possible to appeal to the Board of Immigration Appeals (BIA)[89] by filing a Form EOIR-29, Notice of Appeal to BIA of Decision of District Director, within 30 days of the decision.[90] A brief should also be submitted. The BIA doesn’t consider new evidence on appeal.

In the alternative, within 30 days of the decision, a motion to reopen or reconsider, may be filed with the official who made the decision. The motion is filed on Form I-290B and may be accompanied by a brief. A motion to reopen must state new facts to be proved in the reopened proceedings.[91] A motion to reconsider must state the reasons for reconsideration and be supported by any pertinent precedent decisions to establish that the decision was based on an incorrect application of law or USCIS policy.[92]

3.7 Revocation

An approved I-130 remains valid until the beneficiary is granted LPR status or the I-130 is revoked (as discussed here) or terminated (as discussed below).[93] The I-130 would be revoked automatically upon (1) withdrawal by the U.S. citizen in writing[94]; (2) the beneficiary’s death; (3) death of the U.S. citizen unless USCIS decides that for humanitarian reasons the petition should not be revoked; or (4) legal termination of the husband-wife relationship, except in cases of battered spouses or children.[95]

An approved I-130 can also be revoked by USCIS if USCIS learns of evidence that the I-130 was approved in error and gives the U.S. citizen an opportunity to rebut that evidence.[96] For example, on occasion a consular officer will return the petition to USCIS to request revocation if the consular officer suspects that the I-130 was approved in error.

4. Conclusion

As mentioned above, the next step after approval of the I-130 will be either to apply for an immigrant visa at a U.S. Consulate abroad or, for a noncitizen physically present in the U.S., to file with U.S. Citizenship and Immigration Services (USCIS) a Form I-485, Application to Adjust Status. See our separate Guide to Immigrant Visas for a comparison of those two options (Part 1.2) and for an overview of the entire process (Part 3.1).

Of course, don’t hesitate to contact our firm with any question or concern regarding your case.

 

[1] INA § 201(b)(2)(A)(i).

[2] INA § 204(a)(1)(A)(iii) – (vii).

[3] Pub. L. 108-136, § 1703.

[4] See generally “Proving Nonimmigrant Intent” (especially Part III on dual intent) at http://lawandborder.com/proving-nonimmigrant-intent/.

[5] INA § 216. The two-year period is measured from the time residency is granted. So, if a person obtained an immigrant visa indicating that she is a conditional resident but enters the U.S. after the marriage is more than two years old, then she should be an LPR not a conditional resident. 8 C.F.R. § 235.11(b).

[6] 8 C.F.R. § 216.4(a)(1).

[7] Examples of such evidence include (1) joint ownership of property; (2) lease showing joint tenancy; (3) commingling of finances; (4) birth certificates of children; (5) and other evidence.8 C.F.R. § 216.4(a)(5).

[8] INA § 216(c)(4); 8 C.F.R. § 216.5.

[9] INA § 204(a)(1)(A).

[10] INA § 204(a)(1)(A)(viii), added by the Adam Walsh Child Protection and Safety Act of 2006, Pub. L. 109-248 § 402, 120 Stat. 587. The specified offenses include:

  • An offense (unless committed by a parent or guardian) involving kidnapping;
  • An offense (unless committed by a parent or guardian) involving false imprisonment;
  • Solicitation to engage in sexual conduct;
  • Use in a sexual performance;
  • Solicitation to practice prostitution;
  • Video voyeurism as described in 18 USC 1801;
  • Possession, production, or distribution of child pornography;
  • Criminal sexual conduct involving a minor, or the use of the Internet to facilitate or attempt such conduct; or
  • Any conduct that by its nature is a sex offense against a minor.

Pub. L. 109-248, § 111. AFM 21.2(f); Memo by Donald Neufeld, USCIS Acting Assoc. Dir., Domestic Ops., Transmittal of SOP for Adjudication of Family-Based Petitions under the Adam Walsh Child Protection and Safety Act of 2006, HQ70/1-P, Pub. L. 109-248, Sept. 2, 2008.

[11] Adjudicator’s Field Manual § 21.2(f).

[12]AFM 21.2(f). USCIS regulations as well as the Form I-130 and its instructions are silent about the procedures for determining ineligibility due to such convictions.

[13]Matter of P-, 4 I. & N. Dec. 610 (BIA 1952) (noting that the INA does not define the term “spouse”), cited in Matter of Tijam, 22 I.& N. Dec. 408 (BIA 1998).

[14] In California, if a couple needs to establish a record of the foreign marriage, they can file a petition in Superior Court to establish a Court Order Delayed Certificate of marriage.

[15]See 7 FAM 1457.3 (void and voidable marriages).

[16]Matter of G, 9 I. & N. Dec. 89 (BIA 1960).

[17]Cal. Family Code § 2200.

[18]Cal. Family Code § 2210(a).

[19]Cal. Family Code § 2210(c).

[20]Cal. Family Code § 2210(d), (e).

[21]PRC Marriage Law, art. 10.

[22]PRC Marriage Law, art. 11.

[23]Matter of Alvarez-Quintana, 14 I.& N. Dec. 255 (BIA 1973); Adjudicator’s Field Manual Appendix 21-1 (summarizing states’ requirements for recognition of common law marriage).

[24] INA § 101(a)(35).

[25] Susan Fortino-Brown, Family-Sponsored Immigration, in AILA, Navigating the Fundamentals of Immigration Law 307 (2009-2010), citing Matter of Da Silva, 15 I. & N. Dec. 778 (BIA 1976) (out-of-state marriage of uncle and niece does not violate New York public policy; this marriage is valid for immigration purposes); Matter of T-, 8 I. & N. Dec. 529 (BIA 1960) (same result in Pennsylvania); Matter of E–, 4 I&N Dec. 239 (BIA 1951) (even though California prohibits that type of marriage, it did not actively prosecute when the marriage was lawfully contracted abroad; thus the marriage was valid for immigration); Matter of Zappia, 12 I&N Dec. 439 (BIA 1967) (Wisconsin will consider void a marriage contracted in another state when it was contracted elsewhere to avoid Wisconsin’s prohibition of such marriages; thus, marriage not valid for immigration purposes). 

[26]Matter of Hann, 18 I&N Dec. 196 (BIA 1982). Under PRC law, divorce may be granted by a marriage registration office upon the parties’ agreement. For a divorce of two PRC citizens, both must appear at the Marriage Registration Office with jurisdiction over the hukouben (family registration book) of one of the parties. For a between a Chinese citizen and a foreigner, Hong Kong citizen, Macau citizen, Taiwan citizen or overseas Chinese , both parties must appear at the Marriage Registration Office with jurisdiction over the hukouben (family registration book) of the Chinese citizen. PRC Marriage Registration Regulations, art.10, promulgated by the State Council, effective Oct. 1, 2003. If the parties do not agree to divorce, a petition for divorce may be filed in court. Id. at art. 32. The petition must be filed at the people’s court that has jurisdiction over the defendant’s domicile per the hukouben or, if the defendant’s usual place of residence for over one year is different, in the place of habitual residence. PRC Civil Procedure Law, art.22, enacted by the NPC on April 9, 1991, and amended Oct. 28, 2007.

[27] 570 U.S. ___, 133 S.Ct. 2675 (2013). This overrules prior authority that same-sex marriages were not recognized for immigration purposes. See Adams v. Hawerton, 673 F.2d 1036 (9th Cir. 1982) (INS has interpreted “spouse” to exclude a person entering into a homosexual marriage). See also 9 FAM 40.1 N1.2. USCIS also does not recognize relationships where a spouse is transsexual. Memo, Yates, Assoc. Dir. Of Ops., USCIS, QHOPRD 70/6 (Apr. 16, 2004), AILA Infonet Doc. 04080367.

[28]Bark v. INS, 511 F.2d 1200, 1202 (9th Cir. 1975).

[29]Matter of Peterson, 12 I.& N. Dec. 663 (BIA 1968) (elderly couple with separate bedrooms).

[30]Nikrodhanondah v. Reno, 202 F.3d 922 (7th Cir. 2000) (Although couple had two children court upheld BIA denial where couple gave different years for when they first met, different reasons for the initial breakup, and different periods of time they lived together).

[31]A marriage of convenience is a marriage between two people for practical or financial reasons and not for love or intimacy.

[32]For example, 18 U.S.C. § 1546 (visa fraud); 18 U.S.C. § 1001 (false statement); 18 U.S.C. § 371 (conspiracy); INA § 275 (marriage fraud).

[33] Adjudicator’s Field Manual § 21.3(a)(2)(H).

[34] INA § 237 (a)(1)(G)(ii).

[35]See Matter of M-, 7 I.& N. Dec. 601 (BIA 1957) (this ground of deportability applies even if the marriage was entered into in good faith but does not apply if the foreign spouse was not at fault for the failure to fulfill the marital agreement).

[36] INA § 204(c); 8 C.F.R. § 204.2(a)(1)(ii).

[37]Matter of Aldecoaotalora, 18 I&N Dec. 430 (BIA 1983).

[38] Matter of Lenning, 17 I&N Dec. 476 (BIA 1980).

[39]Matter of Boromand, 17 I&N Dec. 450, 454 (BIA 1980); Matter of McKee, 17 I&N Dec. 332 (BIA 1980); Matter of Kondo, 17 I&N Dec. 330 (BIA 1980). See Ira J. Kurzban, Immigration Law Sourcebook 653-54 (10th ed. 2006). See also AFM §§ 21.3(a)(2)(G), § 21.3(c); 9 FAM 102.3 (“An alien is deemed a ‘spouse’ for visa adjudication purposes, even though the parties to the marriage have ceased cohabiting, as long as such marriage was not contracted solely to qualify for immigration benefits.  If the parties are legally separated, i.e., by written agreement recognized by a court, or by court order, the alien no longer qualifies as a “spouse” for visa adjudication purposes even though the couple has not obtained a final divorce.”)

[40] Update to Form I-130 Instructions (Mar. 1, 2012), http://www.uscis.gov/i-130.

[41] INA § 101(a)(33).

[42] This local requirement appears to be in violation of the regulatory-level I-130 instructions, which only require “residence,” not any particular visa status. More generally, USCIS International Operations plans to issue clearer guidance on the petitioner’s residence requirement during 2015. See AILA-International Operations Liaison Meeting Agenda 7 (Dec. 11, 2014), AILA Doc. No. 15020563.

[43] AFM ch. 21.12, as amended by USCIS Policy Memorandum PM-602-0043.1, Process for Responding to Requests by DOS to Accept a Locally Filed I-130 (May 14, 2012). See 9 FAM 504.2-4(A).

[44] 9 FAM 504.2-4(B)(1). An exception may be made in “quite rare” emergent or humanitarian cases or in cases of national interest.

[45] Id.

[46] Id.; 9 FAM 504.2-4.

[47] 9 FAM 504.2-4(B)(1).

[48] Id.

[49] Id.

[50] A cover letter for USCIS Guangzhou should include a request that the U.S. Consulate in Guangzhou send its “Notice to Immigrant Visa Applicants” (aka Packet 3) to the beneficiary’s email address, since USCIS Guangzhou will not accept a Form G-28 or G-1145 for the beneficiary.

[51] USCIS Fee Schedule, 81 Fed. Reg. 73292 (Oct. 24, 2016) (to be codified at 8 C.F.R. § 103.7).

[52] USCIS Guangzhou will not accept a G-28 on behalf of the beneficiary.

[53] Normally this form is just filled by the petitioner and is used by the USCIS Lockbox to notify the petitioner when the application is accepted (i.e., received). But USCIS Beijing requests one for each spouse and use these forms to collect their email addresses and notify them of the decision in the case. USCIS Guangzhou will use the petitioner’s G-1145 for this purpose but will not accept a G-1145 on behalf of the beneficiary.

[54] Form I-130 Instructions at 1 (Feb. 27, 2017). Before publication of the current Form I-130 and the new Form I-130A, each spouse was required to submit Form G-325A, Biographic Information, including employment and residence history. Now, such data is captured on the Forms I-130 and I-130A.

[55]8 C.F.R. § 204.2(a)(2); Form I-130 Instructions 6 (Feb. 27, 2017).

[56] 9 FAM 504.2-7(A)(1).

[57]8 C.F.R. § 204.1(g)(1).

[58] USCIS offices in China require only the ID pages. Https://www.uscis.gov/about-us/find-uscis-office/international-offices/china-uscis-beijing-field-office. But providing additional pages of both spouses’ passports may be helpful to evidence of travel together to prove the valid marriage.

[59] USCIS requires a “certified copy” of the marriage certificate. 8 C.F.R. § 287.6(a). See AFM ch. 11.1(h).

[60] We recommend that, if you married abroad, you request a number of certified copies of your marriage certificate, as they will be needed for a variety of employment, insurance and legal purposes, and may be difficult to obtain at a later date.

[61] Compare http://www.uscis.gov/about-us/find-uscis-office/international-offices/china-guangzhou-field-office (“original birth certificate” or secondary evidence required) with http://guangzhou.usembassy-china.org.cn/i-130-petition-for-alien-relative.html (If the beneficiary does not have a passport, submit the “original birth certificate” and a notarial version).

[62]8 C.F.R. §§ 103.2(b)(3), 204.1(f)(3). The regulations state that the translation should be certified by any qualified translator.

[63]8 C.F.R. § 103.2(a)(2).

[64]9 FAM 42.73 PN1.2-1.

[65] All U.S. states allow a bride to take a groom’s last name.

[66] AFM 51.4(a) (“Any USCIS document is to be issued to the individual in his or her full legal name.” A “married woman may choose a legal married name (husband’s surname), a legal pre-marriage name (retention of maiden name), or any form of either (e.g., hyphenated name, maiden name and husband’s surname)” on the green card.).

[67]8 C.F.R. §§ 103.2(b)(2), 204.1(f)(1).

[68]See generally 8 C.F.R. § 103.2(b)(4), (5); 8 C.F.R. § 204.1(f)(2).

[69] 9 FAM 504.2-2(D)(3).

[70] USCIS, Service Center Forms Processing, https://www.uscis.gov/forms/service-center-forms-processing (last viewed Sept. 29, 2016).

[71] See generally http://beijing.usembassy-china.org.cn/i-130-petition-for-alien-relative.html.

[72] See generally http://guangzhou.usembassy-china.org.cn/i-130-petition-for-alien-relative.html and http://www.uscis.gov/about-us/find-uscis-office/international-offices/china-guangzhou-field-office.

[73] The attorney needs to separately email the Embassy to ask to attend the appointment.

[74] For example, on occasion the USCIS employee has asserted that additional forms were required, even though the law does not require that such forms be filed.

[75]Memo by Robert C. Divine, USCIS Acting Dep’y Dir., Disclosure of Certain Information Relating to Criminal Histories of Petitioners to Potential Visa Beneficiaries, HQOPRD 70/6.1.1 (May 3, 2006).  The Privacy Act, 5 U.S.C. § 552a, places limits on government agencies’ authority to release information about individuals.

[76]8 C.F.R. § 103.2(b)(7), (9).

[77]8 C.F.R. § 103.2(b)(7).

[78]8 C.F.R. § 204.2(d)(2)(vi).

[79] Adjudicator’s Field Manual § 10.4.

[80]Matter of Brantigan, 11 I & N Dec. 453 (BIA 1966); Adjudicator’s Field Manual § 21.2(c)(1).

[81]8 C.F.R. § 103.2(b)(19).

[82]8 C.F.R. § 103.2(b)(8)(i).

[83]8 C.F.R. § 103.3(a)(1)(i).

[84]8 C.F.R. § 103.2(b)(8)(ii).

[85]8 C.F.R. § 103.2(b)(8)(iii), (iv).

[86] 9 FAM 504.2-5(B)(2).

[87] 9 FAM 504.2-6(A).

[88] Id.

[89]8 C.F.R. § 1003.1(b)(5).

[90]8 C.F.R. § 103.3(a)(2)(i).

[91]8 C.F.R. § 103.5(a)(2).

[92]8 C.F.R. § 103.5(a)(3).

[93]8 C.F.R. § 204.2(h).

[94] A petitioner may withdraw a pending petition at any time until a decision is issued by USCIS. A petitioner may withdraw an approved petition at any time until the beneficiary is admitted to the U.S. as a permanent resident based on the petition. 8 C.F.R. § 103.2(b)(6).

[95]8 C.F.R. § 205.1(a).

[96]INA § 205; 8 C.F.R. § 205.2.

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