The form I-130, Petition for Alien Relative is the first step necessary for a U.S. Citizen or lawful permanent resident to help an eligible relative come or stay in the U.S. permanently by getting a Green Card. Having the first step of this important process denied can be disheartening, but it is by no means a death sentence to the overall application.
Generally, an I-130 might get denied if: (1) you did not provide enough evidence to USCIS to prove that your eligible relationship or (2) USCIS believes that your marriage is not legitimate (if your application is based on marriage).
Denial Based on Insufficient Evidence
If your application was denied because you did not provide sufficient information, the best option might be to simply start over and re-apply with additional evidence.
A good way to know what evidence to provide is to go through the “Checklist of Required Initial Evidence” on USCIS’s page for Form I-130 and make sure you provide as many of those documents as possible. Refiling will give you the time and opportunity to gather and potentially develop additional, necessary information. For example, if your application is based on a qualifying marriage, it might be particularly helpful to spend some time developing additional evidence that proves that your marriage is real, such as:
- Birth certificates of children you have together;
- Leases or mortgages that show you live together;
- Financial records such as:
- Joint bank accounts that show you and your spouse share finances,
- Jointly held loans,
- Joint bills that could show you live together,
- Jointly filed tax returns,
- and jointly held insurance accounts.
- Affidavits by third parties that have personal knowledge about your marital relationship
If you do not wish to re-file and you believe that the denial was a mistake, you also have the option of appealing your denial to the Board of Immigration Appeals. This process is described in detail below in the context of appealing a finding of a fraudulent marriage.
Denial Based on Belief of Marriage Fraud
If the denial is because USCIS believes that you and your spouse got married for the sole purpose of obtaining immigration benefits, a mere re-application will not be sufficient because it will be on the record that your spouse is attempting to defraud the United States. In accord with 8 USC 1154(c), such a record will bar your spouse from any form of immigration benefit in the future. It will therefore be very important to remove this from the record.
This can be achieved by filing EOIR-29, Notice of Appeal to the Board of Immigration Appeals from a Decision of a DHS Officer with the USCIS Field Office that issued the denial. This must be filed by the U.S. Citizen or Permanent Resident, NOT the immigrant spouse. The filing fee for EOIR-29 is $110 as of the time this post was written.
This notice of appeal must be filed within 30 days from when the denial decision was mailed to you. After that, you have 21 days to file a written brief to support your appeal. This written brief should clearly state why you believe that the original USCIS decision is incorrect (in this case, why your marriage is not fraudulent). As part of the written brief, you can provide new evidence that you did not include in the original application, whether it was an oversight or previously unavailable evidence. This would be fundamentally the same type of evidence mentioned in the list above.
There is a slim chance that the BIA will schedule an oral argument for you to expand on your appeal in person, but the most likely scenario is that the BIA will make a decision entirely based on your written appeal. Therefore, it is important to make sure your appeal is thorough as it is the one opportunity you will have to convince the BIA that your marriage is real.
An Experienced Immigration Attorney is Key to Success
Regardless of the reason for the denial and the next step you are thinking of taking, it is important to have an experienced immigration attorney assist you to ensure your second chance does not go to waste. An experienced immigration attorney will help you figure out why your application was denied and can help you re-file your application or file an appeal that will have the best chances of being approved.