Pointers In Petitioning A Relative
By Reuben Seguritan
Form I-130 Petition for Alien Relative is filed with the USCIS in order to bring a relative to the US as a lawful permanent resident (LPR). US citizens can file form I-130 for their spouse (including same-sex marriage), unmarried or married child and their parents or brother or sister as long as the filing US citizen is at least 21 years old. The spouse, unmarried children under the age of 21 and parents of US citizens are considered “immediate relatives” and hence, there are visa numbers readily available for them to go to the US. The remaining classes of relatives of the US citizen must wait for a visa number to be available. This is because for these classes of persons there is a numerical limitation to how many immigrants the US will accept.
Lawful permanent residents can also file an I-130 petition for their spouse and unmarried children. However, for I-130 petitions filed by the LPR, the numerical limitation will apply and hence, a visa number must be available before the relative can immigrate to the US.
For the I-130 petitions, there can be derivative beneficiaries. These derivative beneficiaries are the spouse and the unmarried child under the age of 21 of the principal beneficiary. The derivative beneficiaries can also immigrate to the US. “Immediate relatives” have no derivative beneficiaries.
If the unmarried child of the principal beneficiary turns 21 years old before completing the immigration process, then he cannot immigrate to the US with the principal beneficiary because he has “aged out.” The child could argue that under the Child Status Protection Act (CSPA), he is not 21 years old yet and hence, can immigrate to the US. The age of the beneficiary is computed by subtracting the number of days the petition was pending from the age on the date a visa number became available. However, the child must remain unmarried in order to qualify. Furthermore, the child beneficiary must show that he sought to acquire lawful permanent resident status within 1 year from the date the visa number became available.
If the LPR files the I-130 petition for his/ her unmarried child under the age of 21 or unmarried child 21 years or older, and then the child gets married before immigrating to the US, then the child cannot immigrate to the US anymore. However, if the LPR becomes a US citizen before the child gets married, the original petition can be converted to the category of a US citizen filing the I-130 petition for his married son or daughter of any age. A visa number would likewise have to be available in order for the married child to immigrate to the US with his derivative beneficiaries.
The documents that must be submitted to prove the status as a US citizen in order to file the I-130 petition are: US birth certificate, US Certificate of Naturalization or Report of Birth Abroad of a Citizen issued by an American Embassy or Consulate. The document that proves LPR status is the permanent residence card or green card.
In order to prove the qualifying relationship for purposes of the I-130 petition, the following documents must be submitted: marriage certificate, birth certificate, divorce decree if applicable and if the child was adopted, the copy of the adoption decree showing that the adoption took place before the child’s 16th birthday, evidence that the child was in the legal custody of and resided with the adoptive parents for at least 2 years before or after the adoption.
The US citizen and LPR have the option of filing the I-130 petition alone, known as “stand-alone” filing, or with other applications. The latter option is called concurrent filing. The I-130 petition can be filed concurrently with the beneficiary’s I-485 Adjustment of Status Application, I-765 Application for Employment Authorization and I-131 Application for Travel Document.
If the I-130 is filed after removal proceedings are commenced against the relative, there is a higher standard and a written exemption is required. The USCIS will also require an interview to test whether the relationship is real and not for immigration benefits only. If the relative is already in immigration court for removal proceedings, the I-130 must first be approved and a visa immediately eligible so that the beneficiary can file for adjustment of status with the court. This is because the immigration court does not have the jurisdiction to approve or deny I-130 petitions. If the I-130 is filed with a service center, the beneficiary must immediately request the transfer of the I-130 petition to the local district office for interview and adjudication. If not, the beneficiary will remain in immigration court and be deported as a matter of due course. Even if the I-130 is approved, it will not automatically end the removal proceedings. The beneficiary must apply for adjustment of status and relief from removal by filing the I-1485 with the court.