I-130 denied

[randichek 0]

My LPR wife filed I-130 petition on behalf of her son that is unmarried and under 21 years of age. Her son is in Russia awaiting an immigrant visa. When the I-130 was filed, his birth certificate was not able to be located. Subsequently, the birth certificate was located but not forwarded to USCIS, and it was never requested via RFE. No RFE's were ever sent. Recently we received denial letter for her son's I-130...stating that the lack of birth certificate was reason for denial.

We have consulted with local immigration lawyers and they have gotten us mainly confused.

My intent is to file I-290B, motion to reopen original I-130 and provide the birth certificate to try and keep the priority date of August 2010. I am undecided as to whether to also file a new I-130 at he same time with all required documents.

USCIS forwarded a copy of EOIR-29, Notice of Appeal to BIA; with the denial letter and talked as if this was our only option. However, I believe we have no basis for appeal as we failed to provide the birth certificate and we bear the burden of proof. The USCIS made the correct decision based on the evidence they had.

Our concern is that he will turn 21 years old in September of 2011. Firstly, we would like to keep his August 2010 priority date....but ultimately we don't want to allow him to age out and go into the 2B preference pool.

Any help, experience or advise is greatly appreciated.

[Jojo92122 1,924]

Did you marry the his mother before your stepson's 18th birthday?

[randichek 0]

Did you marry the his mother before your stepson's 18th birthday?

Unfortunately, he was 19

[Jojo92122 1,924]

Why not pursue both avenues? File a new I-130 and include a photocopy of the birth certificate. Appeal the denial.

[RICARDO4EVA2 194]

Sorry to hear. I would try to reopen the case but then again does uscis have to send a rfe when the initial evidence is required? Why was the petition filed/send without the birth certificate knowing it wasnt obtainable?

[randichek 0]

Why not pursue both avenues? File a new I-130 and include a photocopy of the birth certificate. Appeal the denial.

This is the way I am leaning to.

[randichek 0]

Sorry to hear. I would try to reopen the case but then again does uscis have to send a rfe when the initial evidence is required? Why was the petition filed/send without the birth certificate knowing it wasnt obtainable?

There was an assumption made that it would be found and an opportunity would be given to provide it. Again, i am not placing any fault on USCIS. My question is if this is new evidence or facts that would be grounds for a motion to reopen the case.

[Jojo92122 1,924]

There was an assumption made that it would be found and an opportunity would be given to provide it. Again, i am not placing any fault on USCIS. My question is if this is new evidence or facts that would be grounds for a motion to reopen the case.

On the surface, it seems that you don't really have a basis for appeal aside from the fact that you were not given a chance to cure the defect in the I-130 submission.

Let's play devil's advocate; you submitted the I-130 without the required birth certificate to lock in a favorable Priority Date and knowing that the petition was incomplete. If we let this slide and allow others to amend their submissions, USCIS would have to endure a lot of extra work because of incomplete submissions and this could slow down petitions for everyone; including Immediate Relative cases.

It seems to me that denying incomplete submissions is fair to those who do it right. Why should a beneficiary with an incomplete (and potentially defective on purpose) submission be ahead of someone who has a complete submission?

[randichek 0]

UPDATE:

I filed form I-290B, Notice of Appeal or Motion, and it was received by USCIS Calif. Service Ctr. on February 14, 2011.

Verified on USCIS internet site the following today:

Post Decision Activity

On February 25, 2011, we mailed you a notice that we have approved this I130 IMMIGRANT PETITION FOR RELATIVE, FIANCE(E), OR ORPHAN. Please follow any instructions on the notice. If you move before you receive the notice, call customer service at 1-800-375-5283.

For approved applications/petitions, post-decision activity may include USCIS sending notification of the approved application/petition to the National Visa Center or the Department of State. For denied applications/petitions, post-decision activity may include the processing of an appeal and/or motions to reopen or reconsider and revocations.

I am awaiting the letter, but it appears the motion to reopen was approved, and since all required documents/evidence was included with the "motion to reopen" the I-130 petition was immediately approved.

[Khaled_usa 0]

UPDATE:

I filed form I-290B, Notice of Appeal or Motion, and it was received by USCIS Calif. Service Ctr. on February 14, 2011.

Verified on USCIS internet site the following today:

Post Decision Activity

On February 25, 2011, we mailed you a notice that we have approved this I130 IMMIGRANT PETITION FOR RELATIVE, FIANCE(E), OR ORPHAN. Please follow any instructions on the notice. If you move before you receive the notice, call customer service at 1-800-375-5283.

For approved applications/petitions, post-decision activity may include USCIS sending notification of the approved application/petition to the National Visa Center or the Department of State. For denied applications/petitions, post-decision activity may include the processing of an appeal and/or motions to reopen or reconsider and revocations.

I am awaiting the letter, but it appears the motion to reopen was approved, and since all required documents/evidence was included with the "motion to reopen" the I-130 petition was immediately approved.

:dance: CONGRATS :dance:

[Darnell 8,479]

well that's some great news.

If you feel like calling, call into USCIS service center (# should be on the NOA-1 notice)

and get an ISO, inquire about case status, ask when things will go to NVC.

http://www.dhs.gov/xabout/structure/gc_1221837986181.shtm#5