Guide to Form I-130, Petition for Alien Relative

Contents

1. Introduction

1.1 Scope of This Guide

Family reunification is a key policy underlying U.S. immigration law.

This Guide discusses how a U.S. citizen or lawful permanent resident (LPR) can file with U.S. Citizenship and Immigration Services (USCIS) a Form I-130, Petition for Alien Relative. Such a petition is the first step for a relative to become an LPR, colloquially known as a “green card holder.”

In particular, this Guide covers:

  • a U.S. citizen filing a Form I-130 for an “immediate relative,” namely, a spouse, unmarried child under age 21, or parent. A key benefit of immigrating as an immediate relative is that there is no annual quota on the number of visas that may be issued, so there is no waiting list.
  • an LPR filing a Form I-130 for a spouse, unmarried child under age 21, or unmarried son or daughter over age 21. These categories may be subject to waiting lists.

This Guide does not cover all types of Form I-130. It does not discuss:

  • I-130s filed by U.S. citizens for unmarried sons or daughters age 21 or older, or for married sons or daughters of any age, or siblings.
  • 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]

After the I-130 is approved, the next step will be for the relative either to apply for an immigrant visa at a U.S. Consulate abroad[4] or, if physically present in the United States, to file with USCIS a Form I-485, Application to Adjust Status.[5]

There are various other topics that are related but outside the scope of this Guide:

  • 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 in some cases it can be complicated by the immigrant intent implied by the I-130.[6]
  • Other strategies, besides filing an I-130, to apply for a green card or other visa for a relative.

Feel free to contact our law firm for advice on those topics.

1.2 Derivative Beneficiaries

What is a Derivative Beneficiary?

A key topic of this Guide is how an LPR[7] can file a Form I-130 for a spouse or unmarried child under age 21. That spouse or child is referred to as the “principal beneficiary.”

A child (unmarried and under age 21) of the principal beneficiary is entitled to the same status, and the same priority date, if accompanying or following to join, the principal beneficiary. Such a child is referred to as a “derivative beneficiary” because they derive the right to the status from the principal beneficiary. No separate immigrant petition need be filed on their behalf.

To qualify as a derivative child, the child must be “acquired” prior to the principal’s admission to the U.S. with the immigrant visa or adjustment to LPR status. This includes a child born of a marriage which existed at the time of the principal’s admission, even if the child was born after the principal’s admission. This does not include a child born of a marriage which occurs after the principal’s admission.[8]

Derivative family members may “accompany” or “follow to join” the principal beneficiary.[9]

  • To “accompany” means to go to the U.S. physically with the principal beneficiary or within 6 months of the date of issuance of the visa to the beneficiary.[10] An accompanying family member may not precede the principal beneficiary to the U.S.[11]
  • To “follow to join” means to enter the U.S. more than 6 months after the principal beneficiary, provided that the family member has the required relationship with the petitioner. There is no requirement that the “following to join” child must take up residence with the principal beneficiary in order to qualify.[12] At present, relatives following to join may apply directly to the consular post, rather than processing the case through the National Visa Center or having a Form I-824 (Application for Action on an Approved Application or Petition) filed with USCIS on their behalf.[13]

Should an LPR File a Separate I-130 for a Child?

There are certain advantages to filing an I-130 on behalf of a child even if they could otherwise qualify as a derivative beneficiary of a petition on behalf of their parent:

  • Petitioner’s divorce: The child cannot immigrate as a derivative if the LPR petitioner is divorced from their parent.
  • Petitioner’s death: The child cannot immigrate as a derivative if their parent, the principal beneficiary dies. However, it may be possible for the LPR petitioner to ask USCIS to recapture the deceased parent’s priority date when submitting a new I-130.
  • Petitioner’s naturalization: If the petitioner intends to become a U.S. citizen before their spouse and children have immigrated to the United States, the petitioner should consider filing separate I-130s for the children. That way, when the petitioner is naturalized, the petitions for the children are automatically converted from 2A to the immediate relative category. If, however, the petitioner does not file separate petitions for their children before naturalization, the children will lose their derivative status upon the petitioner’s naturalization, The petitioner will then have to file new petitions on their behalf to accord them immediate relative status.[14]
  • Offspring of a derivative child: If an LPR files a second preference petition for their spouse, the spouse is the principal beneficiary of the status accorded by the petition. Any children of the principal beneficiary (the spouse) are derivative beneficiaries who would derive from their parent the same immigration status that the parent has been granted. However, the law does not provide an avenue for derivative beneficiaries to pass their derived immigration status on to any children of their own (or to anyone else for that matter). Under such circumstances, however, the petitioner could elect to file a separate petition for any of their children who have children of their own. With a separately approved petition, the petitioner’s child would be the principal beneficiary of the petition and, accordingly, the child’s children would qualify for derivative immigration status through the principal beneficiary parent.[15]

There are also certain situations where a child may qualify as a derivative beneficiary but not a principal beneficiary. For example:

  • A U.S. citizen or LPR cannot file an I-130 for a stepchild who does not fall within the definition of “child” under the Immigration and Nationality Act because the marriage between their parent and the U.S. citizen or LPR took place after the child turned 18.

1.3 Conditional Resident Status

A spouse or child 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.[16] The condition is that the conditional resident and the U.S. citizen or LPR petitioner 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.[17] The Form I-751 must be accompanied by evidence of valid marriage.[18]

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.[19]

For more on this topic, see our firm’s Guide to Form I-751, Petition to Remove Conditions on Residence.

1.4 Preference Categories, State Department and USCIS Classifications

The Immigration and Nationality Act sets quotas for the number of family-sponsored immigrants per fiscal year, depending on their type of relationship to U.S. citizens or LPRs.[20]

U.S. citizens’ children, spouses, and parents are exempted from those quotas and classified as “immediate relatives.”[21]

The below tables show the following information:

  • Family-sponsored preference category: This refers to the immigrant visa category for the relatives of both U.S. citizens and LPRs who are subject to numerical limitations placed upon immigrant visas by immigration law. To learn more about the waiting lists for the various preference categories, see our firm’s article on How to Read the State Department Visa Bulletin – Chodorow Law Offices.
  • State Department Visa Classification: A visa issued to an immigrant within one of the classes listed in the below table will specify their visa classification.[22] The same classification will be indicated on their Form I-551, Permanent Resident Card.
  • USCIS Class of Admission: The class of admission for an immigrant granted adjustment of status by USCIS will be indicated on their Form I-551, Permanent Resident Card.[23]

Where petitioner is U.S. citizen:

Beneficiary’s Relationship to Petitioner

Family-Sponsored Preference Category

State Department Visa Classification

USCIS Class of Admission

Section of the Immigration and Nationality Act

Spouse

N/A (immediate relative)

IR1

or

CR1 (conditional status)

IR6

or

CR6 (conditional status)

201(b)(2)(A)(i)

Child (unmarried, under age 21)

IR2

or

CR2 (conditional status)

IR7

or

CR7 (conditional status)

Parent

IR5

IR0

Where petitioner is LPR:

Beneficiary’s Relationship to Petitioner

Family-Sponsored Preference Category

State Department Visa Classification

USCIS Class of Admission

Section of the Immigration and Nationality Act

Spouse

2A

F21

or

C21 (conditional status)

F26

or

C26 (conditional status)

203(a)(2)(A)

Child (unmarried, under age 21)

F22

or

C22 (conditional status)

F22

or

F27 (conditional status)

Unmarried son or daughter (age 21 or older)

2B

F24

or

C24 (conditional status)

F29

or

C29 (conditional status)

203(a)(2)(B)

2. Requirements: I-130 for Spouse

A petition on behalf of a spouse must meet the following requirements, both at the time of filing and at the time that LPR status is granted.[24]

2.1 The Petitioner Must Be a U.S. Citizen or LPR

The petitioner must be a U.S. citizen or LPR. For a U.S. citizen petitioner, it’s not relevant whether that status was gained by birth in the U.S., acquisition of U.S. citizenship upon birth abroad, or naturalization.

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

A petitioner 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.”[25]

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.[26]

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.[27]

To qualify as a spouse, the marriage must be legal under the law of the place where the marriage occurred.[28] If you married abroad, there is no requirement that you remarry in the United States.[29]

For a marriage to be valid, prior divorces must be final and valid under the laws of the jurisdiction granting the divorce.[30]

Void and Voidable Marriages

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.[31]An I-130 can’t be approved for a void marriage but can be for a voidable marriage.[32]

In the U.S., each state has its own marriage law. For example, in California, marriages between certain relatives and bigamous marriages are void.[33] In contrast, marriages between minors without court consent are voidable unless the parties freely cohabit after becoming adults.[34] Marriages where either party was of unsound mind are voidable unless, after coming to reason the parties continue to cohabit as husband and wife.[35] Marriages consented to by fraud or force are voidable unless the parties later freely cohabit as man and wife.[36]

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.[37] In contrast, in China, a marriage entered into under coercion is merely voidable.[38]

Common Law Marriages

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.[39]

Proxy Marriages

A “proxy” marriage, where legal, can be valid for purposes of U.S. immigration. Generally speaking, a proxy marriage is a wedding in which one or both of the individuals being united are not in the physical presence of the officiant. An absent party may be represented by another person (“proxy”). If both partners are absent, a “double proxy marriage” occurs. One caveat is that the Immigration and Nationality Act does not recognize proxy marriages unless “consummated,” i.e., unless the couple has had marital relations after the ceremony.[40]

A Utah marriage via video conference is an example of a proxy marriage. Under state law, the officiant must be present in the state of Utah, but the couple may reside and be physically present out of state, including abroad. The marriage license application can be signed electronically. The ceremony can be held over video conference. For more, see Gary Chodorow, Utah Marriage Over Zoom Is Valid for Immigration Purposes (Sept. 23, 2021).

Public Policy

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.[41]

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.[42]

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.[43] 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.[44] 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.[45]

Sham Marriages

Marriages of convenience,[46] 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[47] and to deport the foreign spouse. According to USCIS, some factors that may indicate a sham marriage are[48]:

  • 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.[49] Fulfilling the marital agreement refers to taking at least some steps, such as consummating the marriage, to make a life together.[50]

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.[51] 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.[52]

2.6 The Marriage Has Not Been Terminated

A divorce, annulment, or legal separation[53] 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.[54]

If divorce, annulment, or legal separation proceedings have been initiated, the parties might consider directly addressing immigration concerns in those proceedings. For example, temporary or permanent domestic relations orders might contain specific language requiring support and cooperation in the foreign national spouse’s pending application for residence or alternatively, the couple might agree (or be ordered) to coordinate the timing of a divorce to occur after the grant of the beneficiary’s status as a result of a marriage-based petition. Especially where there are children involved, the ability of the foreign national spouse to legally reside in the U.S. as an LPR (including the inherent ability to work and travel freely) is nearly always a consideration for domestic relations tribunals examining “the best interests of the child.”[55]

Even though lack of viability is not a basis for denial, it is taken into consideration to determine whether the marriage was contracted in good faith at its inception as it may reflect on the couple’s intentions at the time of entering into the marriage relationship.[56] Put extra emphasis on proving the bona fides of the marriage. Be ready for questions about the reasons for the separation.

A key strategic decision is whether to affirmatively advise immigration authorities of the separation or non-viability of the marriage. Often times, this is helpful because a successful outcome depends on immigration authorities determining that the parties are credible.

“In a marital separation case, do not be surprised if the officer puts the case on hold for a later interview or, more often, orders an investigation…. [T]he wait could easily be a year or more, because marriage investigations are often considered a low priority with few investigators assigned to these cases.”[57]

3. Requirements: I-130 for Child, Son or Daughter

3.1 The Petitioner Must Be a U.S. Citizen or LPR

See above.

3.2 The Petitioner Must Not Have Been Convicted of Specified Offenses Against a Minor

See above

3.3 The Beneficiary Must Be Unmarried

The beneficiary must be unmarried at the time the Form I-130 was filed, at the time the application for adjustment of status or an immigrant visa was filed, and at the time of admission to the United States.

A marriage which ended prior to filing the I-130 is not disqualifying.

3.4. The Beneficiary’s Age

  • Child of a U.S. citizen: The beneficiary must be under age 21 on the date the I-130 is filed. Should they later turn 21 before they obtain residency, they still count as a “child” under the Child Status Protection Act.[58] In other words, they do not “age out” because of delays in processing the case.
  • 2A category: The beneficiary must be under age 21 on the date the I-130 is filed. Furthermore, turning 21 may result in “aging out,” resulting in automatic conversion to the 2B category. For detailed rules about this, as set forth in the Child Status Protection Act, see our firm’s Immigrant Visa Guide.
  • 2B category: This category is for a son or daughter beneficiary age 21 or older.

3.5 Special Requirements for Children Born Out of Wedlock

A natural mother may file an I-130 on behalf of a child born out of wedlock.[59] 

If a natural father files an I-130 on behalf of a child born outside of wedlock, then one of the following requirements must be met[60]:

Legitimation

The child (a) was legitimated under the law of the child’s residence or domicile, or under the law of the father’s residence or domicile, whether in or outside the United States, if (b) such legitimation takes place before the child reaches the age of eighteen years and (c) the child is in the legal custody of the legitimating parent or parents at the time of such legitimation.[61]

Legitimation can take place in any of the following ways[62]:

  • Marriage of the natural parents is the most common form of legitimation.
  • A formal court decree of legitimation before the child turned 18 will also suffice.
  • A child can be legitimated by the laws of the country or state of the child’s residence or domicile, or by the laws of the country or state of the father’s residence or domicile. For example, under China’s marriage law, all children born in China are legitimate from birth.[63] The policy behind this law was to remove the stigma of illegitimacy.[64]

A natural father will be presumed to have had legal custody of a child at the time of legitimation, in the absence of affirmative evidence indicating otherwise.[65] Legal custody does not require residing with the child.

Bona Fide Parent-Child Relationship

The father has or had a bona fide parent-child relationship with the child.[66] According to the regulations:[67]

Such a relationship will be deemed to exist or to have existed where the father demonstrates or has demonstrated an active concern for the child’s support, instruction, and general welfare. Primary evidence to establish that the petitioner is the child’s natural father is the beneficiary’s birth certificate, issued by civil authorities and showing the father’s name. If the father’s name has been legally changed, evidence of the name change must accompany the petition. Evidence of a parent/child relationship should establish more than merely a biological relationship. Emotional and/or financial ties or a genuine concern and interest by the father for the child’s support, instruction, and general welfare must be shown. There should be evidence that the father and child actually lived together or that the father held the child out as being his own, that he provided for some or all of the child’s needs, or that in general the father’s behavior evidenced a genuine concern for the child. The most persuasive evidence for establishing a bona fide parent/child relationship and financial responsibility by the father is documentary evidence which was contemporaneous with the events in question. Such evidence may include, but is not limited to: money order receipts or canceled checks showing the father’s financial support of the beneficiary; the father’s income tax returns; the father’s medical or insurance records which include the beneficiary as a dependent; school records for the beneficiary; correspondence between the parties; or notarized affidavits of friends, neighbors, school officials, or other associates knowledgeable about the relationship.

3.6 Special Requirements for Stepchildren

To qualify for I-130 approval as a stepchild:

  • The beneficiary must have been under age 18 at the time of the marriage that created the relationship
  • The marriage between the petitioner and the child’s parent must have been legal and not contrary to public policy, as discussed above
  • The marriage must have been valid at its inception, as discussed above
  • The marriage must not have been terminated, as discussed above

3.7 Special Requirements for Adopted Children

The Immigration and Nationality Act has three distinct ways an adopted child may be considered to be the child of his or her U.S. citizen adoptive parent(s) for immigration purposes:[68]

  • INA § 101(b)(1)(E), which applies to adopted children if certain requirements are met, including where the parent or parents have two years of legal custody and joint residence.[69]
  • INA § 101(b)(1)(F), which applies to children coming to the United States as “orphans” from countries that have not ratified the Hague Adoption Convention, if they have been adopted, or are coming to the United States to be adopted, by U.S. citizen(s);[70] and
  • INA § 101(b)(1)(G), which applies to children coming to the United States who have been adopted, or are coming to the United States to be adopted, by U.S. citizen(s) under the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (Hague Adoption Convention).[71]

Adoptions under INA § 101(b)(1)(E)

This Guide only covers I-130s filed under INA § 101(b)(1)(E). Under this provision, you may file a Form I-130 for an adopted child if the adoption took place before the child turned 16 years of age (with the exception for adoption of siblings noted below), and if the child has been in the legal custody and has lived with the adoptive parents for at least 2 years before filing the petition.[72]

An important limitation to INA § 101(b)(1)(E) is that USCIS may not approve a Form I-130 that is filed by a citizen who is habitually resident in the United States on behalf of a child, son or daughter who is habitually resident in a country, other than the United States, that is a Party to the Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption (“Hague Adoption Convention”), unless the citizen completed the adoption of the child before April 1, 2008.[73] For a list of parties to the Convention, see Convention Countries (state.gov).

Under INA § 101(b)(1)(E), if your child is adopted, the adoption must be valid, meaning:

  1. It is valid under the law of the country or place granting the order;
  2. It creates a legal permanent parent-child relationship between a child and someone who is not already the child’s legal parent; and
  3. It terminates the legal parent-child relationship with the prior legal parent(s).[74]

In the case of a petition by a U.S. citizen stepparent, the law in some countries allows a stepparent to adopt the children of their spouse if the legal parent-child relationship with the other legal/biological parent has been terminated by death or legal action. In this situation, it is enough to meet the third essential element of “adoption” for the parent-child relationship to be terminated as to the prior parent who is not the spouse of the adopting stepparent. The continuing legal parent-child relationship between the child and the adopting stepparent’s spouse is, of course, not an impediment to the adoption. The legal custody and joint residence requirements of INA section 101(b)(1)(E), however, must be met by the adoptive stepparent before the individual can be considered the adopting stepparent’s child under section 101(b)(1)(E).[75]

A stepparent does not actually need to adopt his or her stepchild in order for a Form I-130 or Form I-730 to be approved. If the parent and stepparent married before the child’s 18th birthday, the stepparent-stepchild relationship can be a basis for approving a Form I-130.[76]

Child’s Age Limit

You must submit a copy of the adoption decree showing that the adoption took place before the child turned 16 years of age.[77]

There is a special exception to the age limit for adoption of siblings: If you adopted a child under 16 years of age, and you also adopted the older sibling of that child, you may file a petition for the older child if the adoption occurred before the older child turned 18 years of age. You must submit a copy of the adoption decree showing that the adoption of the sibling occurred before the sibling turned 18 years of age.[78]

You must also submit copies of evidence that each child was in the legal custody of the parents who adopted him or her for at least two years before or after adoption. Only a court or recognized government entity may grant legal custody, and it is usually granted at the time the adoption is finalized. However, if legal custody is granted by a court or recognized government entity prior to the adoption, that time may count toward fulfilling the 2-year legal custody requirement.[79] Evidence of informal custody, such as a sworn and notarized affidavit, is not acceptable.

Physical Presence Requirement

Further, you must submit proof that the adoptive child resided with the petitioner for at least two years. The two years need not be continuous and may be counted in the aggregate. Such proof includes evidence that the adoptive parent owns or maintains the property where the child resides and provides financial and day-to-day support for the child. If the adoptive child continued to reside in the same household as a natural parent during the time in which the adoptive parent is trying to fulfill the two-year residence requirement, then the adoptive parent must prove that he or she exercised primary parental control.[80]

Child Citizenship Act

Pursuant to the Child Citizenship Act (CCA), an adopted child can automatically

acquire citizenship on the date when all the following requirements are met: (1) at least one parent is a U.S. citizen; (2) the child is under the age of 18; (3) there is a full and final adoption; and (4) the child is admitted to the United States as an immigrant or is “present in the United States pursuant to a lawful admission, and is maintaining such lawful status.”[81]

Exemption from the Affidavit of Support Requirement

Further, when applying for permanent resident status, a child who will automatically acquire citizenship upon meeting the above requirements will not be required to submit a Form I-864, Affidavit of Support. Instead, only form I-864W, Intending Immigrant’s Affidavit of Support Exemption, is required.[82]

4. Requirements: I-130 for Parent

4.1 The Petitioner Must Be a U.S. Citizen

See above.

4.2 The Petitioner Must Not Have Been Convicted of Specified Offenses Against a Minor

See above

4.3 The Petitioner Must Be At Least Age 21

You may not file for an adoptive parent, if the adoption took place after the child turned 16 years of age, or if the child has not been in the legal custody and has not lived with the parents for at least 2 years before filing the petition.

You may not file for a natural parent, if you gained lawful permanent resident status or U.S. citizenship through adoption or as a special immigrant juvenile.

4.5 Additional Requirements if the Petition is for a Father

If your father and mother were married at the time you were born, you must prove that:

  • the marriage was legal and not contrary to public policy, as described above; and
  • if either your mother or father was previously married, such marriage was legally terminated, such as by divorce, annulment, or death.

There are additional requirements, not discussed here, if your petition is for a stepparent or adoptive parent or if you were born out of wedlock.

5. Form I-130 Procedures

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.[83]

Jurisdiction often depends on the petitioner’s “residence,” which means the place of general abode; the place of general abode of a person means their principal, actual dwelling place in fact, without regard to intent.[84]

If the petitioner moves while the I-130 is pending, USCIS may (but usually does not) 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.

5.1 Jurisdiction for Petitioners Residing in the U.S.

Petitioners “residing” in the U.S. should mail their petition to either the Dallas or Phoenix lockbox, depending on their state of residence.[85]

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, within 1-2 weeks USCIS will mail out a receipt notice with the USCIS case number, which allows tracking of the case status online.

The case will then be forwarded to one of several USCIS Service Centers for processing. Currently, I-130s are being assigned to the California, Potomac, Texas, and Vermont Service Centers.[86]

5.2 Jurisdiction for Petitioners Who Are Abroad

Note: As of Feb. 1, 2020, USCIS will no longer accept and adjudicate Form I-130 petitions at its international field offices.[87] This follows a period beginning Mar. 2019 when USCIS began to close most of its international offices.

The options remaining are to file by mail with the USCIS Dallas lockbox, file online, or file at a U.S Embassy or Consulate in “exceptional circumstances”

File with USCIS Dallas Lockbox

A “Lockbox” is a secure facility used by USCIS to intake benefit applications and collect associated fees. All documents are scanned. The Lockbox does not approve or deny applications received. Instead, a Lockbox will accept or reject an application based on USCIS rules. The Lockbox will also send a receipt or rejection notice to the applicant within about 2 weeks of delivery of the application to USCIS. Accepted applications will be forwarded to one of several USCIS Service Centers for processing.[88] Current processing times are posted at www.uscis.gov.

File Online

Most law firms find that glitches in the online filing system make this the slowest option.

If you file online, your I-130 will be adjudicated according to the same procedures as I-130s filed with the lockbox.

File with a U.S. Embassy or Consulate in “Exceptional Circumstances”

Which I-130s can be filed at a U.S. Embassy or Consulate?

USCIS has delegated to the State Department authority to accept and adjudicate, as a matter of discretion, the following types of I-130s[89]:

  • An I-130 for an immediate relative (U.S. citizen’s spouse, a U.S. citizen’s unmarried child under the age of 21, or a parent of a U.S. citizen who is 21 years of age or older) in limited “exceptional circumstances”[90]; or
  • An I-130 for an immediate relative filed by U.S. citizen military service member.

What are the physical presence and residence requirements for filing an I-130 at a U.S. Embassy or Consulate?

  • The petitioner and the beneficiary must be physically present in the district.[91]
  • The beneficiary must be to remain in the country for the time it normally takes to process the visa.[92]
  • The petitioner is not required to be a resident of the consular district, but residence may be considered as a factor for acceptance under both the exceptional circumstances and blanket filing authorizations. A consular officer will not accept an I-130 form a petitioner based in the U.S. who travels overseas for the express purposes of trying to circumvent the processing times associated with domestic filings.[93]
  • The beneficiary need not be a resident of the consular district.[94]

What if the petitioner has already filed electronically or domestically?

A consular officer will not accept a local filing abroad if the petitioner has already filed a Form I-130 domestically for the same beneficiary. If exigent circumstances exist, the petitioner should request expedited processing for the electronic or

domestically-filed petition.[95]

What is the definition of “exceptional circumstances”?

If a consular section encounters a case they believe meets the exceptional circumstance criteria outlined below, then the Consular Chief or another designated consular officer may exercise discretion to accept and adjudicate the filing.[96]

USCIS has removed the requirement that the consular officer seek and receive case-specific permission from USCIS in advance of deciding tot accept an I-130.[97]

The following are “examples” of the types of exceptional circumstances where consular officers may opt to accept I-130 immediate relative petitions:[98]

  • U.S. Military emergencies: A U.S. service member, who is abroad but who does not fall under the military blanket authorization for U.S. service members stationed abroad on military bases, becomes aware of a new deployment or transfer with little notice. This exception generally applies in cases where the U.S. service member is provided with exceptionally less notice than would normally be expected.
  • Medical emergencies: A petitioner or beneficiary is facing an urgent medical emergency that requires immediate travel.
  • Threats to personal safety: A petitioner or beneficiary is facing an imminent threat to personal safety. For example, a petitioner and beneficiary may have been forced to flee their country of residence due to civil strife or natural disaster and are in precarious circumstances in a different country outside of the United States.
  • Close to aging out: A beneficiary is within a few months of aging out of eligibility.
  • Petitioner has recently naturalized: A petitioner and family member(s) have traveled for the preference immigrant visa interview, but the petitioner has recently naturalized and the family member(s) require a new petition based on the petitioner’s citizenship.
  • Adoption of a child: A petitioner has adopted a child abroad and has an imminent need to depart the country. This type of case should only be considered if the petitioner has a full and final adoption decree on behalf of the child and the adoptive parent(s) has had legal custody of and jointly resided with the child for at least 2 years.
  • Short notice of position relocation: A U.S. Citizen petitioner, living and working abroad, received a job offer in or reassignment to the United States with little notice for the required start date.
  • Other: The Consular Section may exercise its discretion to accept local Form I-130 filings for other emergency or exceptional circumstances of a non-routine nature. However, such filings must be truly urgent and otherwise limited to situations when filing with USCIS online or domestically with an expedite request would likely not be sufficient to address the time-sensitive and exigent nature of the situation.

What about large-scale disrupting events?

In an event such as a natural disaster or prolonged or severe civil strife, USCIS may delegate blanket authorization to the Department of State to accept and adjudicate clearly approvable Form I-130 immediate relative petitions from petitioners directly affected by such events. The petitioner need not prove “exceptional circumstances” where a blanket authorization has been granted. These temporary blanket authorizations do not require, but rather, allow consular offices to use their discretion to accept a Form I-130. Under this temporary blanket authorization, an officer may accept a Form I-130 filing by a petitioner who does not reside within post’s jurisdiction, bearing in mind that the intent of the authorization is to assist those directly affected by the disruptive event, not to speed up the process for those petitioners who are not directly affected.[99]

What are the procedures for asking that a U.S. Embassy or Consulate accept the filing of an I-130?

If a consular officer declines to accept a local filing, the officer should inform the petitioner of the decision and of the process for filing the Form I-130 at a USCIS lockbox or online. The petitioner does not have the right to appeal, motion, or otherwise request reconsideration of a USCIS or DOS decision to decline acceptance of a local filing.[100]

For information about the adjudication process at a U.S. Embassy or Consulate, see below.

5.3 Use of Married Name

In the U.S., a married person has several choices regarding the name they use:

  • They may continue to use their birth-given surname.
  • They may use the surname of their spouse, or a hyphenated combination of the two surnames.
  • In most states, a married person can also change their birth-given surname to their middle name, but in a few states (New Jersey, Ohio, Pennsylvania, and Washington), a name change petition must be approved by a court.[101]
  • Some states like California and Massachusetts allow the parties to select any middle or last name at the time they apply for a marriage license.

When you file the I-130, you can choose which variation of your legal name you want to use. USCIS will issue identity documents, including green cards, using any name can legally be used as your “full legal name.”[102]

  • One caveat: if you will be applying for an immigrant visa at a U.S. consular post abroad, then your name on the I-130 should match that on your passport. The reason is that the name on your passport, immigrant visa, and green card will all need to match.[103] If you like, after you receive your green card, you can file a Form I-90, Application to Replace Permanent Resident Card, to get a new card with your married name.[104] He filing fee is significant. Or, if you entered as a CR1 conditional resident, you can change your married name as part of the process for the Form I-751, Petition to Remove the Conditions on Residence.

If you will use a new name, then you should inform others of the name change, including, for example, any of the following that apply:

  • Social Security Administration
  • Department of Motor Vehicles
  • Internal Revenue Service
  • Employers
  • Schools
  • Post Office (via change of address form)
  • Banks and Other Financial Institutions
  • Creditors and Debtors
  • Telephone and Utility Companies
  • State Taxing Authority
  • Insurance Agencies
  • Your country’s passport agency

If you change your name to reflect your marriage after your green card has been issued, you can still re-enter the U.S. as an LPR by presenting to U.S. Customs and Border Protection both the green card and the marriage certificate.[105] In the alternative, you can file with USCIS a Form I-90, Application to Replace Permanent Resident Card, to get a card with your new name.[106]

If you have a green card with a married name but passport with a maiden name, travelers report that you should still be allowed to depart China for the U.S. Prior to departure, you must go through an immigration check to show evidence you can enter the U.S. Travelers report that it is sufficient to, upon request, show your marriage certificate as evidence that the passport and green card both relate to you. However, some report taking the additional step of having a note added to their passport to reflect their married name.[107] (Also, always book airlines tickets in the name shown on the passport ID page).

When applying for naturalization, a person has another opportunity to change their name without filing a separate name change petition in court.

5.4 Choosing Between Consular Processing and Adjustment of Status

The beneficiary of an approved immigrant petition may seek permanent residence either by filing an application for an immigrant visa (IV) with a U.S. Consulate abroad or by filing a Form I-485, Application to Adjust Status, with USCIS.

The I-130 on Page 8, Part 4, Item 61, asks you to choose whether you will file an IV application or I-485.

The primary distinction between an IV application and I-485 is that to file an I-485, the applicant must be physically present in the U.S.[108] So for a person abroad, the most common choice is to apply for an IV. Some beneficiaries of an approved immigrant petition can enter the U.S. with intent to file a Form I-485. But most nonimmigrant visa types cannot be used for this purpose. That’s because most nonimmigrant visas types (for example, B1/B2 visitor visas) require that the holder intend to enter the U.S. temporarily and intend to maintain his or her primary home abroad.[109] Exceptions include, for instance, the H-1B specialty occupation worker visa and the L-1 intracompany transferee visa, which do not require maintenance of a primary home abroad.[110]

Most persons physically present in the U.S. will choose filing an I-485 instead of an IV because: (1) it avoids the expense and inconvenience of travel to the home country; (2) I-485 applicants, including dependent family members, are entitled to employment authorization and permission to travel while the I-485 application is pending; (3) employment-based I-485 applicants receive job mobility (i.e., “portability”) benefits; and (4) there are more options for reconsideration of an unfavorable decision by USCIS. Discuss with your attorney whether adjustment or consular processing is the best choice for you.

After you have already filed an I-130 choosing between the IV and I-485 paths, you may still be able to change your mind:

  • To change from an IV application to an I-485, NVC just asks that you “notify NVC [the National Visa Center] of your intent to adjust status.”[111]
  • To change form an I-485 to an IV application, if your I-130 is already approved, you will need to file with USCIS a Form I-824, Application for Action on an Approved Petition. The I-824 asks USCIS to forwards the approved petition to the NVC. The processing of Form I-824 can take months. USCIS will treat an I-824 as a request to withdraw any pending I-485.[112] Similarly, if you have a pending I-485 and file a “duplicate” I-130, that will be treated as a request to withdraw the I-485.

The best practice when filing an I-130 is to choose IV processing on Page 8, Part 4, Item 61. That way, if in the future you can freely change your mind between the IV application and I-485 paths without the delay associated with filing an I-824.

5.5 Documents to Be Filed

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

Basic Documents:

  1. Cover letter with index of exhibits and any key legal argument
  2. I-130 filing fee: $535.[113]
  3. Forms G-28, Notices of Appearance as Attorney, on behalf of petitioner and beneficiary
  4. Form G-1145, E-Notification of Petition Acceptance: Use this form if filing with a USCIS lockbox
  5. Form I-130, Petition for Alien Relative
  6. 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[114]

Evidence if I-130 Is for a Spouse:

  1. 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.[115]
  2. Two passport-style photos of each spouse.[116] For cases filed with a consular officer, the photos should be taken within 30 days of the I-130 filing date.[117]
  3. Marriage certificate. (For example, for U.S. marriages, submit a certified copy of the marriage certificate.[118] For China marriages, a notarial marriage certificate.)[119]
  4. Proof of termination of prior marriages by either spouse. (For example, for U.S. divorces, submit a certified copy of the court’s final judgment. For China divorces, submit a notarial divorce certificate).
  5. Evidence of the validity (good faith) of the marriage

Evidence if the I-130 Is for a Stepchild:

  1. Child’s birth certificate. (For a U.S. birth certificate, submit a certified copy. For a China birth, submit a notarial birth certificate).
  2. Marriage certificate between parent and stepparent. (For example, for U.S. marriages, submit a certified copy of the marriage certificate.[120] For China marriages, a notarial marriage certificate.)[121]
  3. Proof of termination of prior marriages by either spouse. (For example, for U.S. divorces, submit a certified copy of the court’s final judgment. For China divorces, submit a notarial divorce certificate).
  4. Evidence of the validity (good faith) of the marriage between the parent and stepparent

Evidence if the I-130 Is for an Adopted Child

  1. Adoption decree
  2. If the parent had legal custody before the adoption, provide a copy of the grant of legal custody by a court or recognized government entity.
  3. The child’s birth certificate
  4. Evidence that the adoptive child resided with the petitioner for at least two years. Such evidence may include evidence that the adoptive parent owns, rents, or maintains the property where the child resides and provides financial and day-to-day support for the child.

Evidence if the I-130 Is for a Parent:

  1. Son or daughter’s birth certificate. (For a U.S. birth certificate, submit a certified copy. For a China birth, submit a notarial birth certificate). For a petition on behalf of a mother, the birth certificate should show the mother’s name. For a petition on behalf of a father, the birth certificate should show both parents’ name.
  2. Parents’ marriage certificate. (For example, for U.S. marriages, submit a certified copy of the marriage certificate.[122] For China marriages, a notarial marriage certificate.)[123]
  3. Proof of termination of prior marriages by either parent. (For example, for U.S. divorces, submit a certified copy of the court’s final judgment. For China divorces, submit a notarial divorce certificate).

Other:

  1. If the petition is being filed with a U.S. Embassy or Consulate, submit evidence of the petitioner’s residence within the post’s jurisdiction. (For example, in China, this is typically a residence permit in the petitioner’s passport).
  2. Proof of any name change by either the petitioner or the beneficiary, if you are relying on any documents which show a prior name
  3. Certified translations of any documents in a foreign language.[124] Note that a translator’s certification by a PRC notary does not meet USCIS requirements (for example, it is not signed), so an additional translator’s certification is advisable.

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.[125]

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.[126]

Submission of copies: For filings at a USCIS lockbox, copies of supporting douments should be submitted, although USCIS may later ask to check the copies against the originals. For filings with a U.S. consular officer: originals of supporting documents are required.[127]

5.6 Detailed Procedures for Filing an I-130 at a U.S. Consulate Abroad

Here’s a summary of the procedures for filing an I-130 at a U.S. consulate abroad. Note that this is not an interview, although the clerk may ask you some questions about your documents (e.g., “Have you been divorced? If yes, did you bring the divorce decree?”):

Appointment:

  • Guangzhou: Upon approving your request to file the I-130 at the consulate, an appointment will be scheduled for you to do so.
  • Hong Kong: Same.
  • Tokyo: Same.

Who Should Go: The petitioner must file the I-130 in person. The beneficiary’s attendance is optional. (In a rare case, it can be helpful for the beneficiary to attend, such as if the beneficiary is present to add a signature to a form that was previously overlooked.)

Timing: We recommend you arrive 15 minutes before your scheduled appointment because it can take that long to go through security and walk to the immigrant visa unit inside the compound. Be prepared for the appointment to take 30 to 90 minutes.

Consulate Location:

  • Guangzhou (Map): Enter through the Consular Customer Entrance on Huaxia Road.
  • Hong Kong (Map)
  • Tokyo (Map)

COVID-19 Precautions:

  • Guangzhou: Visitors must wear a face mask and follow social distancing instructions. If you are feeling ‎ill or have been exposed to COVID-19, you should not enter the Consulate and should reschedule your appointment.[128]
  • Hong Kong: Visitors must wear face masks and follow social distancing instructions. Persons who have been abroad (including mainland China and Macau) in the past 14 days are not permitted entry to the Consulate.
  • Tokyo: Visitors must wear face masks or cloth face coverings. Persons who (a) have traveled outside of Japan within the last 14 days, (b) are sick or have flu-like symptoms such as coughing, fever, shortness of breath, etc.; or (c) have been exposed to persons known to have tested positive for COVID-19 should not enter the Embassy and should reschedule their appointment.[129]

Entering the Consulate / Security Regulations: You should not need to stand in a line with visa applicants outside the consular compound. To enter the compound, you will need to show your passport and appointment notice to the Chinese diplomatic police posted at the gate to the compound and then to the staff at the security checkpoint inside the compound.

Proceed through the metal detector. You will not be able to bring large bags inside, so carry your documents in plastic folders or a small bag.

Filing Your Petition: Upon entering the immigrant visa unit, check in with staff to let them know you have arrived.

Give the 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 supporting documents in the packet (e.g., passports, marriage certificates). So, make sure to bring any originals our office requests.

  • Tokyo: The immigrant visa unit asks that you insert certain original documents into the I-130 packet, placing each next to the copy. Please refer to the documents list we have provided for details.[131]

In the unlikely event that the clerk wants to keep any original document, ask what arrangements will be made for it to be returned to you later.

Accept or Reject: The clerk 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. 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 employee tells you your I-130 will be accepted, the will give you instructions to go to the nearby cashier to pay the filing fee.

  • Guangzhou: The cashier is on the second floor. 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.
  • Hong Kong: The filing fee can be paid by cash or credit card (U.S. or local currency).
  • Tokyo: The fee can be paid in cash (USD or Yen) or credit card (Visa, Mastercard, Discover, American Express, Diner’s Club, and JCB). The Embassy notes, “Be prepared to pay with cash in case the credit card verification system is temporarily unavailable.”[132]

The cashier will give you a receipt. Give one part to the immigrant visa unit clerk. The other is for you to keep. Once you have done this, you should be ready to leave.

Cashier’s Receipt: Please keep the cashier’s receipt safe. 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: See below.

5.7 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.[133]

Interview: USCIS may require an interview of the petitioner and/or beneficiary.[134] However, in practice, interviews are required only rarely for standalone[135] I-130s because an interview will be held in conjunction with the beneficiary’s immigrant visa application or Form I-485, Application to Adjust Status.[136] If an interview is required, the interview will be held at a USCIS field office.

Marriage Involving Minor(s): In recognition of the vulnerabilities associated with marriages involving minors, an interview will be held for a standalone I-130 spousal petition if:

  • the petitioner or the beneficiary is less than 16 years old; or
  • the petitioner or the beneficiary is “at least 16 or 17 years of age” and there are 10 years or more difference between the ages of the spouses.

The interviewer should the legality of the marriage in the place it was celebrated, the validity of the marriage in the couple’s current or presumed state of residence, public policy considerations, and the bona fides of the spousal relationship for immigration purposes.[137]

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.[138] For example, in connection with a petition for a child, USCIS may require a blood test of the parents and child.[139]

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.”[140]

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.[141]

Decision: USCIS should notify both the petitioner and the attorney of its decision on a petition.[142]

  • Approval: If the evidence establishes eligibility, USCIS must approve the petition. This is not a matter left to USCIS discretion.[143]
  • Denial: If the evidence establishes ineligibility, the petition must be denied. USCIS should notify the petitioner of the specific reasons for denial.[144]
  • 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.[145]
  • 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.[146]

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.

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.

Consular officers at posts abroad are authorized to adjudicate certain “clearly approvable” petitions.[147] A case is not clearly approvable if:

  • Primary evidence submitted does not satisfy the officer that the petitioner is a U.S. citizen or that the relationship to the beneficiary claimed in the
  • petition exists;
  • Petitioner cannot present primary evidence relating to such matters; or
  • USCIS has so instructed post because the Adam Walsh Act check raises questions which need further review.

If an I-130 is not clearly approvable, a consular officer must send the petition and supporting documents, along with a memorandum explaining why the petition is not clearly approvable, to the National Visa Center (NVC). The NVC will forward those materials to the designated USCIS office for adjudication.

A consular officer lacks power to deny the petition.

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.

5.8 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)[148] by filing a Form EOIR-29, Notice of Appeal to BIA of Decision of District Director, within 30 days of the decision.[149] 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.[150] 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.[151]

5.9 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 in our firm’s Immigrant Visa Guide, available upon request).[152]

The I-130 would be automatically revoked upon:

  1. withdrawal by the petitioner in writing to USCIS[153];
  2. legal termination of the husband-wife relationship, except in cases of battered spouses or children[154];
  3. the marriage of the beneficiary of an I-130 in the family-sponsored 2A or 2B category[155];
  4. legal termination of the required husband-wife relationship, except in cases of battered spouses or children[156];
  5. legal termination of the husband-wife relationship, except in cases of battered spouses or children[157];
  6. legal termination of the petitioner’s status as an LPR unless the petitioner became a U.S. citizen.[158] LPR status can be terminated in a number of ways, such as deportation or abandonment. For more on abandonment, see Keeping Your Permanent Resident Status: Best Practices for Avoiding Abandonment;
  7. the beneficiary’s death[159]; or
  8. death of the petitioner or principal alien, in some situations[160]:

Visa Classification

Circumstances on date of death

Effect on Petition

IR1 (spouse of U.S. citizen)

Petitioner dies while I-130 pending of approved

I-130 reinstated and treated as I-360 widow(er) petition or, if pending, adjudicated as I-360. Children included as derivative beneficiaries of the I-360.

Petitioner dies without having filed I-130

May file I-360 within 2 years of death. Children included as derivative beneficiaries of the I-360.

IR2 (child of U.S. citizen)

Petitioner dies while I-130 pending or approved

and beneficiary residing in U.S. at time of death

Upon request, the I-130 will be reinstated or

approved if beneficiary continues to reside in

U.S. until adjudicated.[161]

Petitioner dies after approval of I-130 and

beneficiary NOT residing in U.S. at time of death

Discretionary Humanitarian Waiver of Death of Petitioner may be requested.[162]

Petitioner dies while I-130 remains pending,

Beneficiary NOT residing in U.S. at time of death

Petition not approvable.[163]

2A spouse of LPR (including derivative children)

Petitioner dies while I-130 pending or approved and ANY Beneficiary residing in U.S. at time of death

Upon request, the I-130 will be reinstated or

approved if beneficiary continues to reside in

U.S. until adjudicated.[164]

Petitioner dies after approval of I-130; NO

Beneficiary residing in U.S. at time of death.

Discretionary Humanitarian Waiver of Death of Petitioner may be requested.[165]

Petitioner dies while I-130 remains pending; NO Beneficiary residing in U.S. at time of death.

No waiver available. Petition not approvable.

Principal Beneficiary dies while I-130 pending or

approved and ANY Beneficiary residing in U.S. at time of death,

Upon request, the I-130 will be reinstated or

approved if beneficiary continues to reside in

U.S. until adjudicated.[166]

F2A child of LPR (includes

derivative children of the unmarried

principal beneficiary)

Petitioner dies while I-130 pending or approved

and ANY Beneficiary residing in U.S. at time of

death (Note: principal alien could have derivative

child)

Upon request, the I-130 will be reinstated or

approved if beneficiary continues to reside in

U.S. until adjudicated.[167]

Petitioner dies after approval of I-130; NO

Beneficiary residing in U.S. at time of death

Discretionary Humanitarian Waiver of Death of Petitioner may be requested.[168]

Petitioner dies while I-130 remains pending; NO Beneficiary residing in U.S. at time of death

Petition not approvable.

Principal Beneficiary dies while I-130 pending or

approved and ANY Beneficiary residing in U.S. at time of death

Upon request, the I-130 will be reinstated or

approved if beneficiary continues to reside in

U.S. until adjudicated.

An approved I-130 can also be revoked by USCIS if the agency learns of evidence that the I-130 was approved in error and gives the petitioner an opportunity to rebut that evidence.[169] 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.

6. 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 and Guide to Form I-485, Application to Adjust Status for more information and a comparison of those two options.

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. Feel free to request our Immigrant Visa Guide.

  5. See our Guide to Form I-485, Application to Adjust Status.

  6. See generally Proving Nonimmigrant Intent (especially Part III on dual intent).

  7. There are no derivative beneficiaries of a Form I-130 on behalf of an immediate relative. INA § 203(d). So, a U.S. citizen must file separate I-130s for each spouse and child (unmarried and under age 21).

  8. 22 C.F.R. § 22.53; 9 FAM 502.1-1(C)(2) (Sept. 14, 2020).

  9. INA § 203(d); 22 C.F.R. § 42.31(b).

  10. 22 C.F.R. § 40.1(a)(1).

  11. 22 C.F.R. § 40.1(a)(2).

  12. 9 FAM 40.1 N7.1.

  13. 9 FAM 502.1-1(c)(2) (Sept. 14, 2020).

  14. 9 FAM 502.2-3(C)(c).

  15. 9 FAM 502.2-3(C)(b).

  16. 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).

  17. 8 C.F.R. § 216.4(a)(1).

  18. 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).

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

  20. INA §§ 201(c), 203(a).

  21. INA § 201(b)(2)(A)(i).

  22. 8 C.F.R. § 42.11.

  23. DHS, Immigrant Classes of Admission (Nov. 24, 2021).

  24. INA § 204(a)(1)(A).

  25. 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.

  26. Adjudicator’s Field Manual § 21.2(f).

  27. 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.

  28. 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).

  29. 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.

  30. 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.

  31. See 7 FAM 1457.3 (void and voidable marriages).

  32. Matter of G, 9 I. & N. Dec. 89 (BIA 1960).

  33. Cal. Family Code § 2200.

  34. Cal. Family Code § 2210(a).

  35. Cal. Family Code § 2210(c).

  36. Cal. Family Code § 2210(d), (e).

  37. PRC Marriage Law, art. 10.

  38. PRC Marriage Law, art. 11.

  39. 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).

  40. INA § 101(a)(35).

  41. 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).

  42. 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.

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

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

  45. 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).

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

  47. 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).

  48. Adjudicator’s Field Manual § 21.3(a)(2)(H).

  49. INA § 237 (a)(1)(G)(ii).

  50. 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).

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

  52. Matter of Aldecoaotalora, 18 I&N Dec. 430 (BIA 1983).

  53. Matter of Lenning, 17 I&N Dec. 476 (BIA 1980).

  54. 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.”)

  55. Laura L. Lichter, Litigating the Denial of a Marriage-Based Immigrant Petition Part I: Creating a Strategic Record, 11-09 Immigr. Briefings 1 (Sept. 2011).

  56. Matter of McKee, supra.

  57. Matthew Hoppock, et al., Was It Just a Vegas Wedding, Immigration Practice Pointers: Tips for Handling Complex Cases 84, 89 (AILA, 2016-2017 ed.)

  58. INA §201(f)(1).

  59. INA §101(b)(1)(D).

  60. Form I-130 Instructions at 7 (Feb. 13, 2019).

  61. INA § 101(b)(1)(C).

  62. 8 C.F.R. § 204.2(d)(2)(ii).

  63. Matter of Wong, 16 I. & N. Dec. 646 (BIA 1978), following Chin Lau v. Kiley, 563 F.2d 542 (2d Cir. 1977), and overruling Matter of Lo, 14 I. & N. Dec. 379 (BIA 1973).

  64. AFM 21.2(c)(6)(A).

  65. Matter of Rivers, 17 I. & N. Dec. 419 (BIA 1980), cited in 12 USICS-PM H.2(B) (definition of child and residence for purposes of naturalization).

  66. INA § 101(b)(1)(D).

  67. 8 C.F.R. § 204.2(d)(2)(iii). See Matter of Vizcaino, 19 I. & N. Dec. 644 (BIA 1988).

  68. Matthew J. Maiona, Family-Sponsored Immigration, in AILA, Navigating the Fundamentals of Immigration Law 314, 336 (2019-20 ed.). See USCIS Memorandum, “USCIS Policy Memo on Determining When Adoptions Are Valid for INA Purposes” (Nov. 6, 2012),

    AILA Doc. No. 12120577; USCIS Memorandum, “Guidance on the Implementation of the Intercountry Adoption Universal Accreditation Act of 2012 and the Consolidated Appropriations Act, 2014 in Intercountry Adoption Adjudications” (June 30, 2014), AILA Doc. No.14070360.

  69. See also AFM ch 21.4.

  70. See also AFM ch 21.5.

  71. See also AFM ch 21.6.

  72. INA § 101(b)(1)(E); USCIS, Form I-130 Instructions at 8 (Feb. 13, 2019).

  73. INA § 204(d)(2).

  74. 8 C.F.R. § 204.2(d)(2)(vii)(C); AFM 21.15(b).

  75. AFM 21.15(b).

  76. Id.

  77. INA § 101(b)(1)(E); USCIS, Form I-130 Instructions at 8 (Feb. 13, 2019).

  78. INA § 101(b)(1)(E); USCIS, Form I-130 Instructions at 8 (Feb. 13, 2019).

  79. INA § 101(b)(1)(E); USCIS, Form I-130 Instructions at 8 (Feb. 13, 2019).

  80. 8 C.F.R. § 204.2(d)(2)(vii). See also Matter of Cuello, 20 I. & N. Dec. 94 (BIA 1989) (discussing how to prove parental control).

  81. INA § 322(c).

  82. 8 C.F.R. § 213a.2(a)(2)(ii)(E).

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

  84. INA § 101(a)(33).

  85. USCIS, Direct Filing Addresses for Form I-130, Petition for Alien Relative (Jan. 31, 2020).

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

  87. USCIS, Policy Alert: Accepting Petition for Alien Relative (Form I-130) Abroad (Jan. 31, 2020). However, the USCIS field offices in Accra, Ghana; and London, England, will continue to accept and adjudicate Forms I-130 until April 1, 2020, if you reside in-country.

  88. USCIS, Lockbox Intake Processing Tip Sheet (June 6, 2018).

  89. 6 USCIS-PM B.3(A).

  90. 9 FAM 504.2-4(A).

  91. 9 FAM 504.2-4(B).

  92. Id.

  93. Id.

  94. Id.

  95. Id.

  96. Id.

  97. USCIS, Policy Alert: Accepting Petition for Alien Relative (Form I-130) Abroad (Jan. 31, 2020).

  98. 9 FAM 504.2-4(B).

  99. 9 FAM 504.2-4(B); 6 USCIS-PM B.3(C).

  100. 6 USCIS-PM B.3(D).

  101. Tyrone Jones, Maiden Name to Middle Name Change (last viewed June 8, 2020).

  102. 1 USCIS-PM E.5(A); 11 USCIS-PM A.2(A)(2).

  103. 9 FAM 504.10-2(C)(1)

  104. USCIS, I-90, Application to Replace Permanent Resident Card (Apr. 9, 2020).

  105. CBP, US Citizens/Lawful Permanent Residents Name Does Not Match Documents (Sept. 27, 2019).

  106. USCIS, I-90, Application to Replace Permanent Resident Card (Apr. 9, 2020).

  107. For more information, see Chinese Consulate in Los Angeles, 普通护照:加注 (last viewed June 8, 2020).

  108. INA § 245(a).

  109. INA § 101(a)(15)(B).

  110. INA § 101(a)(15)(H), (L).

  111. U.S. Dep’t of State, Immigrant Visa Processing—General FAQs (last visited Aug. 7, 2020).

  112. Memo from Michael Cronin, Acting Exec. Assoc. Comm’r, Office of Programs, USCIS, Prohibition on Concurrent Pursuit of Adjustment of Status and Consular Processing (HQ70/23.1P (Aug. 8, 2000), amending AFM ch. 23.2.

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

  114. 8 C.F.R. § 204.1(g)(1).

  115. 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.

  116. 8 C.F.R. § 204.2(a)(2); Form I-130 Instructions 6 (Feb. 27, 2017).

  117. 9 FAM 504.2-7(A)(1).

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

  119. 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.

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

  121. 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.

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

  123. 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.

  124. 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.

  125. 8 C.F.R. § 103.2(a)(2).

  126. 8 C.F.R. §§ 103.2(b)(2), 204.1(f)(1).

  127. 9 FAM 504.2-2(D)(3).

  128. Apply for a U.S. Visa | Home – China (English) (ustraveldocs.com) (last visited July 15, 2021).

  129. U.S. Embassy in Tokyo, “Important Information for Visa Applicants Regarding Novel Coronavirus (Jan. 6, 2022).

  130. U.S. Embassy in Tokyo, “Important Information for Visa Applicants Regarding Novel Coronavirus (Jan. 6, 2022).

  131. U.S. Embassy in Tokyo, “Important Information for Visa Applicants Regarding Novel Coronavirus (Jan. 6, 2022).

  132. U.S. Embassy and Consulates in Japan, I-130 Petition Checklist (last viewed Jan. 15, 2022).

  133. 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.

  134. 8 C.F.R. § 103.2(b)(7), (9).

  135. Here, “standalone” refers to an I-130 filed without a Form I-485, Application to Adjust Status.

  136. AFM ch. 21.3(a)(2)(D)(iv).

  137. USCIS Policy Alert, Marriage Involving Minors (Apr. 2, 2019), adding AFM ch. 21.3(a)(2)(D)(iv).

  138. 8 C.F.R. § 103.2(b)(7).

  139. 8 C.F.R. § 204.2(d)(2)(vi).

  140. Adjudicator’s Field Manual § 10.4.

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

  142. 8 C.F.R. § 103.2(b)(19).

  143. 8 C.F.R. § 103.2(b)(8)(i).

  144. 8 C.F.R. § 103.3(a)(1)(i).

  145. 8 C.F.R. § 103.2(b)(8)(ii).

  146. 8 C.F.R. § 103.2(b)(8)(iii), (iv).

  147. 9 FAM 504.2-4.

  148. 8 C.F.R. § 1003.1(b)(5).

  149. 8 C.F.R. § 103.3(a)(2)(i).

  150. 8 C.F.R. § 103.5(a)(2).

  151. 8 C.F.R. § 103.5(a)(3).

  152. 8 C.F.R. § 204.2(h).

  153. 8 C.F.R. § 205.1(a)(3)(i)(A). 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).

  154. 8 C.F.R. § 205.1(a)(3)(i)(D).205.1(a).

  155. 8 C.F.R. § 205.1(a)(3)(i)(I).

  156. 8 C.F.R. § 205.1(a)(3)(i)(D).205.1(a).

  157. 8 C.F.R. § 205.1(a)(3)(i)(D).205.1(a).

  158. 8 C.F.R. § 205.1(a)(3)(i)(J).

  159. 8 C.F.R. § 205.1(a)(3)(i)(B).

  160. See generally Robert Crane and Nancy Shivers, Establishing, Retaining and Converting Priority Dates (Apr. 10, 2017).

  161. INA § 204(l) (not retroactive to petitions adjudicated before Sept. 28, 2009).

  162. INA § 205; 8 C.F.R. § 205.1(a)(3)(C)(2).

  163. 8 C.F.R. § 204.

  164. INA § 204(l) (not retroactive to petitions adjudicated before Sept. 28, 2009).

  165. INA § 205; 8 C.F.R. § 205.1(a)(3)(C)(2).

  166. INA § 204(l) (not retroactive to petitions adjudicated before Sept. 28, 2009).

  167. INA § 204(l) (not retroactive to petitions adjudicated before Sept. 28, 2009).

  168. INA § 205; 8 C.F.R. § 205.1(a)(3)(C)(2).

  169. INA § 205; 8 C.F.R. § 205.2.

10 comments

  1. My wife and I currently live abroad. I’m preparing a Form I-130 for my wife. The form asks, “Provide the address in the United States where the beneficiary intends to live….” We’re not sure where we’ll live in the U.S. How should I answer?

  2. I am a US citizen living and working in China. I am preparing to file a Form I-130 on behalf of my Chinese wife. Can I file it in China even though I have only used a Mainland travel permit for Hong Kong permanent residents to enter/exit China and qualify for a residence permit?

    1. Matthew: The legal requirement to establish that a USCIS international office in China has jurisdiction over the I-130 is that you “reside” (i.e., live) here. So, even though you have no PRC residence permit in your U.S. passport, still you should be able to use other evidence to establish that you live in China.

      1. Hi Gary, thank you so much for your response! Does this mean a person may still qualify to file the I-130 with USCIS China even if they have no Chinese visa in their passport?

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