New York Lawyer's Legal Updates

I-130 Petition And Immigrant Visa (Adjustment Of Status)

Author: green card lawyer Alena Shautsova

Recently an interesting case came into my office where the individual said that he had applied for his mother to come to the US through immediate relative I-130 petition. His I 130 petition was approved and his mother’s Immigrant Visa was approved. The issue at question was trying to save 6 months’ worth of time and an additional filing expense of $420. The mother unfortunately was unable to come during the time that her visa application was active and her visa has expired.

So, prior to obtaining the visa, the son and the mother had to go through following steps: first, the son filed an I 130 petition for the mom which was approved; second, he had to submit to the NVC the required fees and documents; and finally, the mother had to appear for the immigrant visa interview.

Now, when she has never used the issued visa, does can she simply re-apply for the visa, or does the son have to repeat all the steps again?

The law actually states that the son will have to repeat the steps again, including payment of all the fees. The same result will be if the I -130 petition has been used to adjust status. In re Francisco Javier VILLARREAL-ZUNIGA, 23 I&N Dec. 886 (BIA 2006) (An application for adjustment of status cannot be based on an approved visa petition that has already been used by the beneficiary to obtain adjustment of status or admission as an immigrant.)

It seems that a person who simply has an I -130 approved and did not take any actions on it subsequently, is better off than one who took the next steps and then abandoned the process.

However, there are other situations when I 130 petition is automatically revoked. Those are:

(1) If the Secretary of State shall terminate the registration of the beneficiary pursuant to the provisions of section 203(e) of the Act before October 1, 1991, or section 203(g) of the Act on or after October 1, 1994;

(2) If the filing fee and associated service charge are not paid within 14 days of the notification to the remitter that his or her check or other financial instrument used to pay the filing fee has been returned as not payable; or

(3) If any of the following circumstances occur before the beneficiary's or self-petitioner's journey to the United States commences or, if the beneficiary or self-petitioner is an applicant for adjustment of status to that of a permanent resident, before the decision on his or her adjustment application becomes final:

(i) Immediate relative and family-sponsored petitions, other than Amerasian petitions. (A) Upon written notice of withdrawal filed by the petitioner or self-petitioner with any officer of the Service who is authorized to grant or deny petitions.

(B) Upon the death of the beneficiary or the self-petitioner.

(C) Upon the death of the petitioner, unless:

(1) The petition is deemed under 8 CFR 204.2(i)(1)(iv) to have been approved as a Form I-360, Petition for Amerasian, Widow(er) or Special Immigrant under 8 CFR 204.2(b); or

(2) U.S. Citizenship and Immigration Services (USCIS) determines, as a matter of discretion exercised for humanitarian reasons in light of the facts of a particular case, that it is inappropriate to revoke the approval of the petition. USCIS may make this determination only if the principal beneficiary of the visa petition asks for reinstatement of the approval of the petition and establishes that a person related to the principal beneficiary in one of the ways described in section 213A(f)(5)(B) of the Act is willing and able to file an affidavit of support under 8 CFR part 213a as a substitute sponsor.

(D) Upon the legal termination of the marriage when a citizen or lawful permanent resident of the United Stateshas petitioned to accord his or her spouse immediate relative or family-sponsored preference immigrant classification under section 201(b) or section 203(a)(2) of the Act. The approval of a spousal self-petition based on the relationship to an abusive citizen or lawful permanent resident of the United States filed under section 204(a)(1)(A)(iii) or 204(a)(1)(B)(ii) of the Act, however, will not be revoked solely because of the termination of the marriage to the abuser.

(E) Upon the remarriage of the spouse of an abusive citizen or lawful permanent resident of the United States when the spouse has self-petitioned under section 204(a)(1)(A)(iii) or 204(a)(1)(B)(ii) of the Act for immediate relative classification under section 201(b) of the Act or for preference classification under section 203(a)(2) ofthe Act.

(F) Upon a child reaching the age of 21, when he or she has been accorded immediate relative status undersection 201(b) of the Act. A petition filed on behalf of a child under section 204(a)(1)(A)(i) of the Act or a self-petition filed by a child of an abusive United States citizen under section 204(a)(1)(A)(iv) of the Act, however, will remain valid for the duration of the relationship to accord preference status under section 203(a)(1) of theAct if the beneficiary remains unmarried, or to accord preference status under section 203(a)(3) of the Act if he or she marries.

(G) Upon the marriage of a child, when he or she has been accorded immediate relative status under section 201(b) of the Act. A petition filed on behalf of the child under section 204(a)(1)(A)(i) of the Act or a self-petition filed by a child of an abusive United States citizen under section 204(a)(1)(A)(iv) of the Act, however, will remain valid for the duration of the relationship to accord preference status under section 203(a)(3) of theAct if he or she marries.

(H) Upon the marriage of a person accorded preference status as a son or daughter of a United States citizen under section 203(a)(1) of the Act. A petition filed on behalf of the son or daughter, however, will remain valid for the duration of the relationship to accord preference status under section 203(a)(3) of the Act.

(I) Upon the marriage of a person accorded status as a son or daughter of a lawful permanent resident alien under section 203(a)(2) of the Act.

(J) Upon legal termination of the petitioner's status as an alien admitted for lawful permanent residence in theUnited States unless the petitioner became a United States citizen. The provisions of 8 CFR 204.2(i)(3) shall apply if the petitioner became a United States citizen.

The Child Status Protection Act however, may help to save the old priority date for many cases.

Sometimes, it is possible to file a new petition and recapture the old priority date.

The beneficiary of a new family preference petition may not retain the priority date of a revoked petition if: (1) The new petition accords a different preference status; (2) The new petition is filed by a different petitioner; or (3) The old petition was revoked under INA 203(g) (8 U.S.C. 1153(g)). The preference priority date in such a case is the filing date of the new petition.

19 August 2015
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