The I-130 petition is the first step in immigrating to the United States through a family member. It is filed by U.S. citizens or lawful permanent residents to establish relationship with an alien relative.
U.S. citizens may file an I-130 for a spouse, unmarried child under 21 years of age, unmarried son or daughter 21 years or older, married son or daughter of any age, brother or sister, or a parent. Lawful permanent residents may file for their spouses and unmarried children only.
When an I-130 is denied, it does not necessarily mean that the process is over. In some cases, the reasons for denial are impossible to overcome. But many times the denial is just a hurdle that only tests one’s determination. When faced with a denial there are several options to choose from as circumstances may allow.
The denial may be appealed to the Board of Immigration Appeals (BIA). The petitioner files the appeal on Form EOIR-29 with the USCIS service center or district office that denied the petition. The petitioner must file it within 30 days of the date of the decision and pay the filing fee of $110. On the other hand, the petitioner may also opt to simply re-file the petition.
The reasons given by the USCIS for denial is probably the first thing to consider when deciding whether to appeal. For instance, the I-130 must have been approvable when filed in order to make appealing the denial worthwhile. For example, the spouses in a marriage-based petition must be legally married at the time of filing. If the husband’s divorce was not yet final at the time he remarried, the petition could not be approved.
On the other hand, if the reason for denial was a finding of fraud in a marriage-based petition, the petitioner should definitely consider contesting the denial because a fraud finding bars the approval of any other immigrant petition for the beneficiary.
Also, if the I-130 was denied due to failure to submit required documentation, presenting the documentation before the BIA will not necessarily result in a reversal. For example, a beneficiary child’s birth certificate will most likely not be considered “new evidence” by the BIA because it was already available or it “could have been discovered or presented” when the petition was filed. In this scenario, the petitioner may be better off re-filing the petition.
The petitioner may actually choose to do both – simultaneously appealing the denial and re-filing the petition – but several other factors may influence the petitioner to choose one option over the other.
For instance, unless one has an immediate relative petition, he/she would most likely be concerned about priority date preservation, especially when the I-130 took years before it was adjudicated. Re-filing an I-130 means that the priority date in the first petition would be lost.
Another factor is processing time. Appeals with the BIA can take more than one year while I-130 adjudication may take a shorter time. One more thing to consider is the cost: the I-130 filing fee of $420 must be paid again when re-filing, which is a lot more money compared to the $110 appeal fee.
If an appeal to the BIA is unsuccessful, the petitioner may seek review of the I-130 denial in federal court.
The petitioner’s other options include the filing of a motion to reopen/reconsider. A motion to reopen must include new facts supported by affidavits or other documentary evidence. In a motion to reconsider, the petitioner must show that the decision was incorrect based on the evidence of record at the time of the decision. There is a $630 filing fee and a 30-day period to file the motion.