Form I-130 Petition for Alien Relative

How Can I Bring My Child or Parents to the US?

Family-based immigration is one of the most viable options for non-residents to relocate to the United States. A U.S. citizen or a lawful permanent resident (Green Card holder) can petition to have their family members approved to relocate to the U.S. and become permanent residents themselves. Children and parents are considered as part of the family members eligible to relocate to the U.S. through family-based immigration.

To bring a child or parent to the U.S., family-based immigration is the primary way to use residency status to begin the relocation process. Other relocation processes require applications for visas to become permanent residents through means such as employment. To qualify to immigrate to the U.S. through family-based immigration, the person to be petitioned must meet the qualifications to immigrate as a child or as a parent.

To qualify as a child of a U.S. resident, the person must be:

• A genetic or a non-genetic legal gestational descendant (the parent having been a surrogate with parental rights);
• A step-child of the U.S. resident who is married to the person’s genetic or a non-genetic legal gestational parent and;
• An adopted child of the U.S. resident, and for whom the adoption decree was issued before turning 16.
  
  

To qualify as a parent of a U.S. resident, the person must be:

• A direct genetic or non-genetic legal gestational ancestor whose name appears on the resident’s birth certificate;
• A direct genetic ancestor who legitimated the resident as their child before the child’s 18^th birthday;
• A direct genetic ancestor who did not legitimize the resident as their child, but who established a bona fide emotional/financial bond with the resident before the child’s 21^st birthday or marriage;
• A step-parent who married the resident’s direct genetic or non-genetic legal gestational ancestor;
• An adoptive parent who adopted the resident before their 16^th birthday.
  
  

A family-based immigration process starts when the family member who is a citizen or Green Card Holder files Form I-130.

About Form I-130: Petition for Alien Relative

Form I-130, namely the Petition for Alien Relative, is a document tenable to the United States Citizenship and Immigration Services (USCIS) to validate a familial relationship with a non-US citizen who wishes to immigrate to the US permanently and obtain a Permanent Resident Card. The approval of Form I-130 enables the prospective immigrant to begin the application process for becoming a lawful permanent resident (LPR) of the United States.

Form I-130 is available for free download as a PDF document on the website of the USCIS. A copy can also be requested by placing a phone call at 1-800-375-5283 to the USCIS National Customer Service Center. 

Who Can Be Sponsored Through Form I-130?

The beneficiaries of a Form I-130 sponsorship are restricted to the close family members of the sponsor. This includes:

• Spouses;
• Children who are unmarried and under the age of 21;
• Unmarried sons and daughters over the age of 21;
• Grandchildren who are unmarried and under the age of 21.
  
  

The status of the sponsor’s residency in the United States also influences the eligibility of a Form I-130 beneficiary. In addition to the eligible beneficiaries listed above, a sponsor who is a U.S. citizen can further sponsor:

• A married son or daughter who is over the age of 21, as well as the married relative’s spouse and children;
• A parent, if the sponsor is over the age of 21;
• A brother or sister, if the sponsor is over the age of 21.
  
  

Who Cannot File an I-130?

Form I-130 cannot be filed by anyone who is neither a U.S. citizen nor a lawful permanent resident in the U.S. To file Form I-130 as an eligible sponsor, documentation showing that the sponsor is indeed either a U.S. citizen or an LPR must be presented. For a citizen, a copy of either the sponsor’s:

• Birth certificate;
• Unexpired U.S. passport;
• Consular Report of Birth Abroad;
• Naturalization certificate or;
• Certificate of citizenship is applicable.
  
  

For an LPR, a front and back copy of the sponsor’s Permanent Residency Card (Green Card), or a foreign passport with a stamp that serves as temporary evidence of permanent residency is acceptable.

What Documents do I Need to Send with I-130?

The USCIS maintains a list of documentation that must be submitted along with Form I-130 by the sponsor. This includes the documents to validate the citizenship or lawful permanent residency of the sponsor listed above and the proof of relationship to the beneficiary. If either the sponsor or beneficiary has undergone a name change (either due to marriage, divorce, adoption, or a court judgment), the document proving this must also be submitted.

The proving document of a familial relationship with the beneficiary differs based on the relationship between the sponsor and the beneficiary:

• A copy of the beneficiary’s birth certificate is typically required for every submission. This is the sole requirement if the sponsor is the genetic or non-genetic legal gestational mother of the beneficiary.

• Sponsors with parental (paternal or as a step-parent) or marital (spouses) relations to the beneficiary must present marriage certificates. The marriage certificate presented by a father or step-parent must show that they are married to the beneficiary’s genetic or non-genetic legal gestational parent.

• Final adoption decrees must be presented by adoptive parents.

• Evidence of termination of marriage either by death, divorce, or annulment is required in some cases:
  

  • If the sponsor is the beneficiary's father and is no longer married to the genetic or non-genetic legal gestational mother;
  • If the sponsor is the beneficiary’s step-parent, documentation showing the termination of that step-parent’s earlier marriage (if any), as well as, documentation showing the termination of the earlier marriage of the beneficiary’s genetic or non-genetic legal gestational parent (if any).
  • Further evidence establishing legal custody and physical custody of the child for at least two years is required for adoptive parents. Sponsors with paternal relations are required to provide evidence of establishing a bona fide relationship with the child before the child turned 21 or married if the father never married the child's mother.

Tips for Filling Out and Filing the I-130 Petition

Supplying the information on Form I-130 and submitting the completed form is a straightforward process. There are, however, pitfalls to avoid while entering information on the petition or while filing with USCIS. The following tips will help lessen the probability of making an error that can either require filing more forms to rectify, increase the processing time of the petition, or outright stall the whole process:

• Always double-check name spellings, and ensure each name agrees with the spelling on the official document proving identity. In the case of a name change, the appropriate documentation of the name change should be provided.

• Multiple I-130 forms are required when applying for more than one person; one form per person.

• All signatures should be handwritten in black ink. Preferably type out the answers on the form, in black, or use black ink when filling it by hand.

• Answer every question on the I-130 fully and accurately. Refer to supporting documents whenever unsure of some information. If the available space on the form is not enough, the additional space on Part 9 of the form can be used. A blank piece of paper can also be attached to the form if extra space is needed. The paper should be signed, dated, and the correct identification for the question answered on it should be shown at the top of the paper (page number, part number, and item number).

• Avoid writing dates in the European format. The sequence should be mm/dd/yyyy.

• Ensure all documentation required by the USCIS is submitted with the form when filing.

• Make sure to pay the filing fee of $535 before submitting the form.

How Long does it Take for an I-130 Petition to Be Approved?

The waiting period of an I-130 petition is determined by two major factors:

• The relationship between the sponsor and beneficiary, assigning the beneficiary to either an Immediate Relative or Family Preference category;
• The USCIS field office or service center processing the petition.
  
  

Each petition submitted to the USCIS is processed in the order in which they are received. Thus, USCIS field offices with large volumes of pending cases will have longer approval times. This is true for both categories of family relationships, but the petitions for beneficiaries in the Immediate Relative category receive more priority and are processed faster.

Most petitions are usually approved within 5 to 12 months of filing. The USCIS provides a page on its website on which the estimated processing time for a petition can be checked. The page titled Check Case Processing Times allows for viewing the estimated processing time of an I-130 petition based on the relationship of the sponsor and beneficiary, and the field office at which the petition was submitted.

The estimated approval date provided by the USCIS does not serve as the absolute indication of when the petition will be approved. If a petition has exceeded the estimated approval duration, an inquiry can be made to find out the status of the petition if no notice has been received. On the same webpage for checking the processing time, there is an option for checking if it has become possible to inquire into the petition based on the receipt date.

At the Texas USCIS service center, the approval timeline for I-130 petitions as estimated by the USCIS are:

Can an I-130 Be Denied?

An I-130 can be denied under certain circumstances. This can happen if the USCIS is unsatisfied with some of the information supplied on the I-130, if some supporting documents are missing/invalid, or if immigration fraud is suspected. The USCIS will typically initially issue a Notice of Intent to Deny (NOID) to the sponsor, notifying them of the deficiency in the application. There is usually a 30-day response window to answer the notice and supply the evidence or information being requested. If the request of the USCIS is not satisfied within this time, a formal denial of the petition will be issued.

If an I-130 is denied, there are two possible actions to take. The first is to restart the process by filing a new petition or requesting an appeal of the petition's denial. If an appeal is to be requested, the denial letter will provide information on how and where to file the appeal. This will require filling out an appeal form and paying a fee. After the appeal request is processed, the case will be sent to the Board of Immigration Appeals for further processing.

It is always advisable to attempt to satisfy the reason for denial on a NOID as much as possible. This can help lessen the chances of complications when attempting to refile the petition or start the appeal process. The appeal option helps clear up the suspicion of wrongdoing for cases in which suspected immigration fraud was the reason for the denial. Persons suspected of attempting immigration fraud, and whose cases are never cleared up using an appeal will become permanently ineligible of entering the U.S. using family-based immigration in the future.

What Happens After the I-130 Application is Approved?

After an I-130 application is approved, the beneficiary of the sponsorship becomes eligible to obtain a visa. The approved I-130 application is sent to the National Visa Center (NVC) of the U.S. Department of State where the sponsored relative will be issued a visa number when one becomes available.

How Will an I-130 Application Be Processed at the NVC?

The NVC receives an I-130 application from the USCIS after it has been approved and pre-processes the application. The application remains with the NVC until selected for further processing based on the following criteria:

• Classification into the Immediate Relative Category
  
  The USCIS maintains on its page that only spouses, unmarried children (under 21 years of age), and parents (of sponsors over the age of 21) of U.S. citizens are eligible for this classification. The application of sponsored relatives in this classification is always processed immediately by the NVC as there are always visas available for this category.

• Classification into the Family Preference Category
  
  If the sponsored relative is not an immediate relative of a U.S. citizen, they are classified into the family preference category. Applicants categorized under this heading will not have their I-130 application processed until a visa number becomes available for them.
  
  There is a number of visas made available every year to immigrants from different countries, and the applicants that will be selected to receive a visa are chosen from a waiting list. The waiting list is created by the number of pending applicants arranged in chronological order. The order is determined by an identifier called the Priority Date that is assigned by the USCIS on the date their I-130 applications were filed. Applicants who fall into the immigrant cut-off for the year are selected, their I-130 is processed by the NVC, and they are issued visa numbers.
  
  If the applicant/sponsored relative is in the United States or abroad.
  
  

The location of the sponsored relative does not affect the duration of the I-130 processing with the NVC.

The sponsored relative will be issued an invoice for the visa application fee by the NVC when they become eligible to receive a visa. For immediate relatives, the invoice should be sent after NVC receives the I-130 applications, while applicants in the family preference category will receive the invoice when their priority date meets the cut-off. Following this, some documentation will be requested by the NVC, and the applicant will have to attend an interview with a consular officer at a U.S. Embassy or Consulate before being declared eligible for a visa.

After being declared eligible for a visa by the NVC, the next step is to proceed to file for permanent residency using Form I-485.

About Form I-485

Form I-485, Application to Register Permanent Residence or Adjust Status, is a document filed with the USCIS by a non-US citizen to become a permanent lawful resident in the United States. Form I-485 applications are used to secure Permanent Residency Cards (Green Cards) for immigrants who wish to relocate to the United States for work or residence.

The function of Form I-485 differs based on where it is filed. It functions independently as either an application to register for permanent residency (for immigrants outside the US), or as an application to adjust immigrant status (for immigrants already in the US), but not as both at the same time, even though the overall function is to allow an immigrant obtain a green card. If the applicant is outside the US, Form I-485 enables them to obtain an immigration visa authorizing them to relocate to the US. For an applicant already in the US (legally), with Form I-485 their residency status will be changed from immigrant to a permanent lawful resident.

A Green Card will be issued to the immigrant after paying the USCIS Immigrant Fee. Immigrants who applied for Form I-485 outside the US will have their Green Cards delivered after moving to the US.

Form I-485 is filed after Form I-130 is approved and a visa is available for the applicant. For immediate relatives of U.S. citizens, Form I-485 can be filed alongside Form I-130 since a visa will be immediately available once Form I-130 is approved.

What are the Steps of an I-485 Application?

After an I-485 application has been filed, the following events will occur:

• The applicant will receive a notice that the application was received;
• The applicant will be notified to attend an appointment for biometrics capturing;
• The biometrics capturing will occur;
• A notice of a scheduled interview with a consular officer will be sent to the applicant;
• The immigration interview will occur and;
• The applicant will receive a notification of the final decision to grant a visa or not.

Can I-485 Be Denied After I-130 is Approved?

An I-485 application can be denied after an I-130 is approved. An I-485 application can be denied for multiple reasons, all of which cite the applicant as being ineligible for permanent residency. Common reasons for denial include supplying incorrect information on the application, omitting supporting documents at the immigration interview, failing to maintain lawful immigration status, or having a criminal record that prevents eligibility for permanent residency. If an I-485 application is denied, the decision can be appealed, or a motion can be filed to reopen/reconsider the decision. An appeal cannot be filed for denial for adjustment of status.

Can My Spouse Travel to the U.S. to Visit While an I-130 Visa is Processing?

A spouse can travel to the U.S. to visit while awaiting approval of an I-130 application. The pending application does not affect other means of obtaining a visa to enter the country. Under a visa for some other purpose, such as tourism or business, a spouse can be admitted to the U.S.. The spouse may, however, be required to prove beyond all doubt that they will return to their country once the visa expires.

A spouse can also travel to the U.S. under a K-3 visa while an I-130 application is pending. A K-3 visa allows the spouse to remain in the U.S. while awaiting a decision on the I-130 filed. This visa can be obtained by filing Form I-129F, Petition for Alien Fiancé(e). This form can only be filed when an I-130 application is already underway.

Do I Need an Attorney to File Form I-130?

An attorney is not required to file Form I-130, the entire application process can be completed without involving an immigration lawyer. The application form can be downloaded from the website of the USCIS and filled out by the applicant without any legal help. The procedure for submitting the filled form, the filing fee, required documentation, as well as the filing location are also listed on the USCIS website.

Getting an attorney can, however, make a difference. An applicant can decide to get an immigration lawyer to lessen the chances of making filing errors, if they have legal complications that can affect the application decision, need to appeal, or are trying to refile a previously denied application.

Can I Work While My I-130 is Pending?

If the beneficiary of an I-130 already legally resides in the U.S., that individual can work while the I-130 is pending. The beneficiary must obtain an Employment Authorization Document (EAD) by filing Form I-765, Application for Employment Authorization with the USCIS. The EAD authorizes the beneficiary to seek employment while in the U.S. without violating any labor laws.

What is the Difference Between I-130 and I-130a?

Form I-130, Petition for Alien Relative, is required to start the application process for a Green Card when attempting to bring a non-citizen to the U.S. through family-based immigration. A Form I-130A, Supplemental Information for Spouse Beneficiary, is coupled with Form I-130 only when attempting to bring a spouse to the U.S. as an I-130 beneficiary. Form I-130A is used to capture information about the non-resident spouse when submitting Form I-130. Form I-130 is a standalone document when applying for a relative that is not a spouse, but to submit Form I-130A, it must be coupled with Form I-130, and only when applying for a spouse.

Can an Immigration Attorney Help Me with the Immigration of a Family Member?

An immigration attorney is well-versed with immigration laws and the options available to navigate the process. To assist in the immigration of a family member, an immigration attorney can give a professional opinion on the best immigration pathway, and if family-based immigration is viable.