Who may NOT file form I-130?

[NYKid 0]

Hello,

 

I wanted to file I-130 petition for my wife (who is currently abroad). I read through the "Who may file form I-130" from I-130 Instructions provided by USCIS. Some of the conditions may apply to me. I was hoping to get some advice.

 

My situation: Got married to USC 6 years ago and received permanent residency(10 years). The marriage terminated 3 years ago. Got remarried again, but back home abroad. It will be 5 years for me being lawful permanent resident on January 30th, 2018. I filed the N-400 naturalization application last week.

The USCIS I-130 application instructions form say this:

 

Who May Not File Form I-130?

You may NOT file Form I-130 for a person in the following categories:

1. An adoptive parent or adopted child, if the adoption took place after the child turned 16 years of age, or if the child has not been in the legal custody and has not lived with the parents for at least 2 years before filing the petition;

2. A natural parent, if you gained lawful permanent resident status or U.S. citizenship through adoption or as a special immigrant juvenile;

3. A stepparent or stepchild, if the marriage that created the relationship took place after the child turned 18 years of age;

4. A spouse, if you and your spouse were not both physically present at the marriage ceremony, unless the marriage was consummated;

5. A spouse, if you gained lawful permanent resident status through a prior marriage to a U.S. citizen or lawful permanent resident, unless:

           A. You are now a naturalized U.S. citizen;

           B. You have been a lawful permanent resident for at least five years;

           C. You can establish by clear and convincing evidence that you did not enter the prior marriage (through which you gained your lawful permanent resident status) in order to evade any U.S. immigration law; or

           D. Your prior marriage through which you gained your immigrant status was terminated by the death of your former spouse;

 

Any insight would be greatly appreciated!!

 

[Tenreyro 174]

Well, by what you said, if you have been a LPR for 5 years, then you qualify by the B statement, and I would say that also the C statement, if you can provide compelling evidence. However, be aware that a USCIS agent or embassy officer can put some pressure into this topic during an interview. Cases that are only for personal gain, evasion of immigration laws and other like those are one of the things that have people like us struggling away from the person we love.

[geowrian 22,337]

You're fine to file the I-130 starting at the end of the month (5 years since obtaining LPR status). They may still ask about previous marriages and such, but if there's a bona fide marriage then you should be fine.

Filing before that and trying to overcome the 5 year rule (item C) is a much more difficult path. Waiting a few more days is definitely easier than overcoming a mandatory presumption of fraud.

[Tenreyro 174]

What geowrian said is important. I didn't notice it was January 30th your 5th year anniversary as a LPR. 

4 minutes ago, geowrian said:

You're fine to file the I-130 starting at the end of the month (5 years since obtaining LPR status). They may still ask about previous marriages and such, but if there's a bona fide marriage then you should be fine.

Filing before that and trying to overcome the 5 year rule (item C) is a much more difficult path. Waiting a few more days is definitely easier than overcoming a mandatory presumption of fraud.

Under that same line of questioning, I know NYKid didn't say that, but I guess any Conditional Permanent Residence would not account for the 5 years as LPR, would it?

 

[NYKid 0]

11 minutes ago, Tenreyro said:

What geowrian said is important. I didn't notice it was January 30th your 5th year anniversary as a LPR. 

Under that same line of questioning, I know NYKid didn't say that, but I guess any Conditional Permanent Residence would not account for the 5 years as LPR, would it?

 

@Tenreyro @geowrian Thanks for your responses. So the rule B sounds like the closest one I can rely on for I-130 filing.

 

The time from my admission as LPR(Lawful Permanent Resident), even though for the first 2 years it is Conditional, DOES NOT count towards Lawful Permanent Residency? My GC says I am a Resident since 1/30/2013. If I could get more clarity on this, it would be great.

Thanks

[geowrian 22,337]

5 minutes ago, NYKid said:

@Tenreyro @geowrian Thanks for your responses. So the rule B sounds like the closest one I can rely on for I-130 filing.

 

The time from my admission as LPR(Lawful Permanent Resident), even though for the first 2 years it is Conditional, DOES NOT count towards Lawful Permanent Residency? My GC says I am a Resident since 1/30/2013. If I could get more clarity on this, it would be great.

Thanks

The 2 years of conditional residency counts towards the 5 years. So you would be fine on 1/30/2018.

Edited January 18, 2018 by geowrian

[NYKid 0]

17 hours ago, geowrian said:

The 2 years of conditional residency counts towards the 5 years. So you would be fine on 1/30/2018.

Thanks geowrian. I was wondering about applying for her Tourist visa while this petition is in process. Would seeking a Tourist visa while this long process ( 2years or more) be seen as appropriate by US Consulate aborad? 

[geowrian 22,337]

58 minutes ago, NYKid said:

Thanks geowrian. I was wondering about applying for her Tourist visa while this petition is in process. Would seeking a Tourist visa while this long process ( 2years or more) be seen as appropriate by US Consulate aborad? 

It's fine to apply for one. It's unlikely she would be granted one with a pending immigrant petition unless she has very strong ties to return home...I would anticipate a 214(b) refusal (aka "immigrant intent").

The only thing to lose is the $160 application fee (assuming she is honest in the forms and interview, but that goes without saying ).

[NikLR 13,231]

1 hour ago, NYKid said:

Thanks geowrian. I was wondering about applying for her Tourist visa while this petition is in process. Would seeking a Tourist visa while this long process ( 2years or more) be seen as appropriate by US Consulate aborad? 

An I-130 petition shows immigrant intent.   That does not mean the spouse cannot try and it will not hurt the F2A if it is denied.