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To File or Not to File an I-130 Visa Petition?

Updated: Aug 12, 2021

To know whether a particular individual ‘should’ file an I-130 visa petition for a family member can easily become very complicated particularly if the Petitioner is a Legal Permanent Resident (LPR) or naturalized U.S. citizen who may have been ineligible at the time of becoming an LPR.

Being an LPR or in some cases a naturalized USC can give a Petitioner a false sense of security from immigration enforcement. Petitioners may falsely believe that if the government hasn't discovered a deficiency in their residency or naturalization process, then the government will never find out. Even if it has been more than 10, 20 or 30 years, any time you file for any kind of benefit for yourself or someone else, like an I-130 Visa Petition, you are literally knocking on the government's door to "check you out".

Any time someone files an I-130 Visa Petition, the government must verify 2 critical requirements:

(1) Whether the Petitioner is eligible to immigrate someone to the U.S.; and,

(2) Whether there is a qualifying relationship between the Petitioner and the Beneficiary (the person whom the Petitioner is trying to immigrate to the U.S.).

Whether the Petitioner is eligible to immigrate someone to the U.S. generally relates to whether the Petitioner has been convicted of a crime related to sexual abuse/assault, was or is ineligible to have been granted LPR status or in some cases U.S. citizenship through naturalization, or might be subject to one of the marital limitations on immigrating a spouse.

The Petitioner vetting process is not so much of a concern for unnaturalized U.S. citizen Petitioners as it is for LPR Petitioners and possibly for naturalized U.S. citizen Petitioners, because USCIS can investigate the LPR and naturalized U.S. citizen Petitioner’s residency application process to determine whether they should have been granted LPR status.

If the government finds out that the LPR or naturalized U.S. citizen was in fact never eligible to become an LPR, naturalized U.S. citizen, or otherwise became deportable after having been granted LPR status, the government can initiate deportation/removal proceedings against the LPR Petitioner or even denaturalization proceedings against a naturalized U.S. citizen Petitioner. Thus, it is particularly important to know whether a Petitioner could trigger removal or denaturalization proceedings prior to filing an I-130 Visa Petition.

Aside from Petitioner eligibility issues, the government will also verify whether the relationship between the Petitioner and Beneficiary is a relationship legally recognized under U.S. law. For instance, if the Petitioner is trying to immigrate their spouse the government will confirm whether the marital relationship is valid pursuant to U.S. law.

Moreover, there are many kinds of familial and non-familial relationships that do not qualify for immigration purposes. For instance, Petitioners cannot immigrate nieces, nephews, aunts, uncles, grandchildren, grandparents, cousins, godchildren, in-laws etc. This also includes non-biological or non-legally recognized relationships such as having grown up with a cousin, friend, distant relative or non-relative whom you consider to be like a biological brother or sister. Although you may consider that person to be a ‘brother’ or ‘sister’ and refer to them as your sibling, the law will not recognize that relationship as such, thus, s/he will not qualify for an immigrant visa petition in the F4 (siblings of U.S. citizens) or any other category. Hence, there are many kinds of family and non-family relationships that do not qualify under U.S. immigration laws.

In summary, to file an I-130 Visa Petition can be a complicated question to answer even though often times it is not. It is rather easy to know whether someone could file an I-130 Visa Petition, but the next major question—which is often less clear to answer, particularly if the prospective Beneficiary is someone who has previous or current immigration violation(s)—is whether a Beneficiary is eligible to immigrate.

Keep in mind that there are many other instances in which it may not be advisable to file an I-130 Visa Petition even though there wouldn’t be any issues with (1) Petitioner Eligibility and (2) Establishing a Qualifying Relationship as discussed above.

It is possible that the Beneficiary could be ineligible to immigrate for any number of reasons such as having triggered the 10-year permanent bar, having been convicted of a felony, crime of violence, controlled substance violation, ordered removed etc. In these types of situations where the prospective Beneficiary is currently residing in the U.S. without lawful status, filing an I-130 Visa Petition could alert immigration authorities about your family member’s unlawful presence in the U.S., thus, triggering enforcement action against them, namely, ICE could go looking for them.

It is very important to remember that if a Beneficiary has already been deported, there is a higher probability that the government will file criminal charges against them for being in the U.S. illegally, which could result in them being sent to jail for years before being deported again.

There are many potential risks involved in filing an I-130 Visa Petition so if you do not feel confident in answering that question for yourself, it is best to speak with an authorized legal professional such as an immigration attorney before you or someone else starts helping you fill out immigration forms and sending a lot of personal information and data to the government that could be used against you or your family.

There are many ways to immigrate to the U.S. and you should explore any viable option. If you need legal advice about an immigration matter, call us for an appointment at 512-443-4788.

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