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Denied I-130: Strategies to Move Forward

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An I-130, or “Petition for Alien Relative” is a family petition that allows you to seek an immigration benefit for your family, including spouse, parents, children and siblings. In some scenarios, USCIS will deny an I-130. The purpose of this blog is to discuss common reasons for denial and what to do if your I-130 is denied.

Common Reasons for I-130 Denials

  • Petitioner Ineligibility: Evidence showing the petitioner’s eligibility, such as proof of lawful permanent resident or US citizenship, was not included, or the petitioner is prohibited from petitioning for the beneficiary due to a conviction triggering the Adam Walsh Act. In other cases, there is a failure to provide evidence to “connect” the family, such as corresponding birth certificates showing the family relationship, especially as it relates to parents or siblings.
  • Beneficiary Ineligibility: The relative you're petitioning for might not be eligible for a green card based on their relationship to you. In some scenarios this may occur through operation of law, such as a step-parent or step-child relationship that occurred after a certain age cut off. In other scenarios, a beneficiary may be ineligible based on a prior finding of marriage fraud under Section 204(c) of the INA.
  • Lack of Evidence of Legitimization of Children. Legitimation is defined as “the act of putting a child born out-of-wedlock in the same legal position as a child born in wedlock.” Matter of Cabrera, 21 I&N Dec. 589 (BIA 1996). Petitions for fathers by US citizens for children born out of wedlock should include evidence of legitimation.
  • Missing Documentation or Errors. Not submitting all the required documents or having incomplete or inaccurate information on the forms can lead to delays or denials. We often see this when applicants file the translation of documents but do not include a copy of the original foreign language document, or miss including other necessary documentation, such as a birth certificate as listed on the US State Department reciprocity table.
  • Failure to Respond to Request for Evidence. In some scenarios, USCIS sent a request for additional evidence but the petitioner failed to respond. In other scenarios, these request may have never been received by the petitioner. If your case was denied for failure to respond to a request, it is important to discuss this with an immigration lawyer, as you may be able to reopen your case.

What to Do If Your I-130 Is Denied

In some instances, an I-130 may have been pending for many years and a denial can be devastating. In these situations, it may be advisable to appeal or file a motion to reopen or reconsider. In other scenarios, such as in a spousal petition, it may be easier to just refile the I-130. It is important to review your I-130 denial decision with an immigration attorney so you can discuss the best option moving forward.

  • Motion to Reopen or Motion to Reconsider

In other scenarios, it may be beneficial to file a motion to reopen or a motion to reconsider. A motion to reopen may include additional evidence. A motion to reconsider may ask USCIS to reconsider its decision.

  • Appeal of I-130 Denial to the Board of Immigration Appeals (BIA)

An I-130 denial may be reviewed by the BIA. See 8 CFR §1003.1(b). In an appeal to the BIA, the petitioner is the appealing party, not the beneficiary. Appealing an I-130 denial requires the experience of an immigration lawyer who can outline the laws and facts of your case and explain why the USCIS denial was in error.

  • Judicial Review of Denied I-130

The petitioner of an I-130 may also seek judicial review of the denial. However, the I-130 can only be reviewed in district court after the petitioner has exhausted all administrative remedies, including appealing to the BIA. For example, in Bangura v. Hansen, 434 F.3d 487 (6th Cir. 2006) the court permitted district review of constitutional, APA and INA challenges to a 204(C) finding. In another case, Ak v. Garland, 2022 WL 3042853 (E.D. Pa. Aug. 2, 2022), the court reversed a denial of I-130 where USCIS unreasonably delayed adjudication and caused prejudice when:

  1. FDNS interviewed person with alleged adverse evidence in 2011 but did not disclose it until 2019 in a NOID;
  2. USCIS delayed second interview by 5 years and used delay against petitioner; and
  3. USCIS provided no reason for the delay. Judicial review of a denied I-130 is especially challenging and should be discussed with an immigration attorney familiar with federal litigation.

Conclusion

An I-130 denial can be devastating. It is important to discuss the reasons for the denial with an immigration attorney to determine the best path forward, which may include an appeal, a motion to reopen or reconsider, or federal litigation.

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