Form I-130 is a form that can be used by U.S. citizens, U.S. nationals, and permanent residents to help a foreign family member gain permanent residence in the United States.
With this form, a petitioner starts the process of family-based immigration by establishing a relationship with certain foreign citizen relatives who want to immigrate to the United States. Filing Form I-130 alone does not get a green card for your relative, but it represents the start of the family-based immigration process.
Some relatives will be granted a visa number quickly. Still, others will have to wait for months or even years depending on various factors, such as the kind of relationship, status (citizen or permanent resident), and origin.
Your relative’s place in line will be based on the date you file your I-130 petition. Therefore, there’s an advantage to filing as soon as possible. While there is no waiting in line for U.S. citizens’ immediate relatives, family preference categories generally have a wait. So if you naturalize while your relatives are waiting for visas, they may be able to immigrate sooner.
But, while you expect the USCIS to finish the process and send out the response, you may be afraid that you will get denied. So the first thing to know is when USCIS plans to deny an I-130 spousal petition, the final decision is not instant.
Instead, USCIS issues a Notice Of Intent To Deny (NOID), providing your spouse an opportunity to respond and supply the petition with more reliable evidence.
The NOID contains all the reasons why the petition cannot be approved and leaves you a certain amount of time to respond to it, which is usually 30 days. If you don’t satisfy USCIS with your response, it will issue its formal decision to deny the I-130 petition for the same reasons previously noted in the NOID.
At this point, you and your spouse have to make a choice. You can either challenge the denial or decide to start all over again and file a new petition.
Of course, you and your spouse can choose to ignore the NOID and do nothing, but it is usually the worst alternative, so you should prepare at least some evidence and proper response.
No matter if you win or lose your case, you should provide the missing evidence, which enforces a contrary result. This will benefit your later efforts in agency interview after submitting a new petition, or after you have received an NTA to face removal charges.
The first reason for denying spouse petitions is that the applicants did not submit enough evidence to prove the marriage is legit. In this case, it would be good for you to file a brand new petition, but this time you must submit evidence showing that your marriage is real. Examples of evidence you should use include:
You should also submit sworn declarations by at least two people who have known both of you and have personal knowledge of your marriage.
The second reason immigration will deny a spouse petitions is because they have determined that the applicants have entered into a fraud marriage for the sole purpose of obtaining immigration benefits.
This is a serious accusation that must be removed from your husband’s record if you are, in fact, in a real marriage. If you do not release it from his record, he will never be able to immigrate through a family-based petition.
One way to fight this determination is to file a motion to reopen, but this can only be done if you can show new evidence in your case. Another way to fight a marriage fraud determination is to appeal to immigration’s denial to the Board of Immigration Appeals. This appeal process can take years to be completed, but I strongly advise you to fight the marriage fraud determination if you believe your marriage is legit.