I-130 Family Petition – Petition for Alien Relative

I-130 Family Petition - Petition for Relative signWhat is it? The I-130 immigration form is used, and submitted, by a U.S. citizen, or legal resident, who is petitioning for a family member who wants to immigrate to the United States. Read on to discover how to file, what common errors people make on their I-130s and what tips and tricks you can use to successfully file your petition.

Who’s who?

It’s important to understand the following terms, as they are commonly referred to in the application form and on the U.S. Citizenship and Immigration Services’ (USCIS) website.

Petitioner: The U.S. citizen that files the I-130 on behalf of their relative

Beneficiary: The relative who wants to immigrate

Adjudicator: The USCIS officer who reviews the I-130

Requirements for the petitioner

Before someone can petition for their family member(s), the petitioner must meet a few requirements, which are:

  • Must be a U.S. Citizen or a lawful permanent resident.
  • Must maintain the U.S. as your primary residence.
  • U.S. Citizens must be 21 years of age or older, if they are petitioning for a parent or sibling. There is no minimum age to sponsor all other categories.

What family members can I petition for?

So what family members can a petitioner file for? It depends on the petitioner’s immigration status – for example, a U.S. citizen can file for their siblings and parents, while a legal permanent resident cannot.

If the petitioner is a U.S. citizen then they can file an I-130 form for the following family members:

  • Spouse
  • Children (married and unmarried)
  • Siblings
  • Parents

If the petitioner is a lawful permanent resident then they can file an I-130 for the following family members:

  • Spouse
  • Unmarried child

Family members who are not eligible under the I-130 are: grandparents, grandchildren, nephews, nieces, uncles, aunts, cousins, fiancés (must instead file the I-129F – Petition for Alien Fiancé) or parents-in-law.

There are also other factors that may render a family member ineligible, such as:

  • An adoptive child may be ineligible if the adoption took place after the child turned 16 years of age, or, if the child has not been in the legal custody of the parents for at least two years before filing the petition.
  • An unmarried child may be ineligible if they become married before an I-130 is approved.
  • A biological parent may be ineligible if the petitioner got citizenship through adoption or as a special immigrant juvenile.
  • A stepchild may be ineligible if the marriage took place after the child turned 18 years of age.
  • A spouse may be ineligible if the petition and their spouse were not both physically present at the marriage ceremony.
    • If the petitioner gained lawful permanent resident status through a prior marriage to a U.S. citizen.
    • If the spouse is the subject of an exclusion, deportation, removal or rescission proceedings.

Required Documents

One I-130 form will need to be filed for each family member that the petitioner is petitioning for. With each I-130 form the petition will also need to supply the following documents:

  • Proof of petitioner’s citizenship or lawful permanent residence. This can be satisfied by providing (front and back) copies of a birth certificate, unexpired passport, naturalization certificate or permanent resident card.
  • Proof of familial relationship. The type of evidence depends on who the petitioner’s petition for. For a spouse this could be a marriage certificate; for a child it would be their birth certificate with the petitioner’s named as a biological parent; for a parent it would be the petitioner’s birth certificate; or a combination of both for a sibling, in order to show common parentage.
  • The filing fee for form I-130 is $535. Only a check or money order can be submitted with your I-130.
  • [For spousal petitioners only] Two photographs of petitioner, two photographs of spouse and a completed and signed Form I-130A.
  • An affidavit of support Form I-864. There are some exceptions, but for the most part, every I-130 must include an affidavit of support. In order to sign the affidavit, the petitioner must be at least 18 years of age, hold a permanent U.S. residence and meet the financial income requirement (have a household income that is equal to, or higher than, 125 percent of the U.S. poverty level).

Additional Documentation for Spouse Petitioners

For petitioners who are petitioning for their spouse, they will need to submit additional documentation with their I-130 that proves the validity of the marriage – that the marriage is real and is not being faked. Examples of additional evidentiary documentation are:

  • A lease showing joint tenancy of a common residence
  • Proof of joint ownership of property
  • Birth certificates of children born to the petitioner and their spouse
  • Sworn affidavits of third parties testifying to the validity of the marriage
  • Bank statements showing the commingling of funds
  • Pieces of mail showing you both live at the same residence
  • Bills with both the petitioner’s and beneficiary’s name on it
  • Taxes showing joint filing
  • Pictures with dates, phone records and email chains showing an actual relationship exists between the parties

Note: our Denver immigration attorneys recommend compiling an evidence folder that utilizes many different types of evidence – don’t just send one or two things that are similar – send a variety of evidence that shows spousal relationship in financial life (bank statements, bills, tax documents), social life (photos, phone records, emails) and legal life (leases, property holdings, marriage & birth certificates).

​Legal tips from our immigration attorneys: make sure to make a copy of your entire application; from your I-130 form to all of the additional pages of evidence, including your check/money order. You want to make sure you have proof of what you sent to USCIS (they make mistakes too), and also so you know what you sent should USCIS ask for additional information.

How long does it take?

The current processing time for an I-130 depends on if the petitioner’s relative is considered to be an immediate family member, as well as the family member’s nationality. USCIS gives greater priority to immediate family members such as unmarried children under 21 years of age, spouses and parents. Thus, petitions for all other family relationships usually have longer wait times.

According to the FY 2016 processing times:

Immediate family member processing times:

Unmarried children under 21: 7 months

Spouse: 7 Months

Parents: 10 months

Other family members processing times:

Sisters/brothers: 40 months

*** Note: Petitioners whose siblings are from Mexico, Philippines, China and India can wait decades to get their I-130 visas approved.

Married children over 21: 35 months

After the I-130 has been submitted, the petitioner will receive a receipt notice, formally known as Form I-797C within 2-3 weeks. UCIS may contact the petitioner to request additional information or may send a Notice of Action if the I-130 is incomplete, either of which can significantly delay the process.

5 Most Common I-130 Mistakes

Most of these mistakes are small – misspellings, wrong addresses, missing or incomplete information. Despite how small they may be, though, they can lead to costly delays and possibly even denial.

1. Not being accurate. Mistakes, typos, inconsistencies, misspellings, wrong information, blank question fields – all of these things, while minor and easy to make, can delay your I-130 and even result in a denial. It’s important to complete your form carefully and review it for these potential problems. Remember to make sure all information is accurate, up to date and names, addresses and titles are used consistently.

2. Not supplying sufficient evidence. It cannot be stressed enough: you can never submit too much evidence. Many petitions get rejected because they have insufficient evidence, either in regard to proving that they [the petitioner] are a lawful U.S. resident, or that they are related to the beneficiary. Make sure you supply enough evidence to satisfy the first (passport, birth certificate, green card, immigration papers) and second (birth certificates, marriage certificates, etc.) claims.

3. Using an outdated I-130 form. Many people have their I-130 revoked and denied all because they used an outdated form. USCIS updates their forms, fees and instructions often. It’s important to make sure you’re using the most current forms and instructions; you can do this by getting you forms directly from the USCIS site and not a third party site.

4. Wrong fee amount. With every I-130, the petitioner must pay a fee. If the fee is the wrong amount, missing or made out to the incorrect institution, USCIS will deny the application. As the fee amount changes, make sure you have the correct/updated form, which will have the appropriate fee amount listed. The fee must be mailed in with the application. It cannot be paid by cash, but must be paid by check or money order. It also must be made out to: U.S. Department of Homeland Security – DO NOT abbreviate.

5. Not getting help. As you can probably tell, filling out an immigration application is no easy task – even the smallest mistake can significantly delay and even derail your application. Even with all the self-help info out on the internet today, it’s not always accurate and most importantly, it cannot take into account your unique situation.

For all petitioners, the trickiest part is making sure your evidence is sufficient – that it’s the right type of evidence, that it’s valid evidence (no expired passports) and that there is enough of it. An attorney can review your application for errors and make sure your evidence is solid. What’s more, if USCIS contacts you for more information, or to schedule an interview, your attorney can help you through these additional processes.

Contact us now to request a consultation. Our attorneys can help guide you through the immigration process from start to finish, or can just review your application, should you decide to go for limited representation.

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