I-130 petition denial question

[MegDan 0]

What are the reasons for an I-130 petition to get denied? Is it mostly if you haven't included everything that USCIS wants you to or if you have lied on your petition? Or could it be a deeper reason than that? What if someone overstayed on their visa or if they were out of status for more than a year? I'm sure USCIS would deny that person because of that, right? Or would they let the beneficiary's country decide that? (the reason I ask that question is because my friend has a husband who was out of status in the U.S., received voluntary departure in front of an immigration judge, and her husband is now back in his home country. She is afraid to file a petition on him because she believes it will be a waste of time and money.)

And I read on a previous post that NVC cannot deny you when it comes to the visa, that isn't their responsibility, it's the beneficiary's country's responsibility. Is that true as well?

I haven't received my NOA2 yet, so I'm not sure on the final decision. I've gotten two touches in a row and needless to say, I'm quite nervous. I am trying not to think negatively but I am just curious on why a USCIS Service Center could (or would) deny a petition?

(I searched for like a list-type thing already on here but only came across reasons for visa denials as well as I-129f denials)

Thanks to anyone who replies!

[Yodrak 7]

MegDan,

What are the reasons for an I-130 petition to get denied?

Failure to demonstrate that a marriage exists.

And I read on a previous post that NVC cannot deny you when it comes to the visa, that isn't their responsibility, it's the beneficiary's country's responsibility. Is that true as well?

The first part is true, the second part is not. The NVC does not make the decisions on visa applications. Neither does the visa applicant's country. The immigrant visa unit at the US consulate makes the decision.

Yodrak

[MegDan 0]

MegDan,

What are the reasons for an I-130 petition to get denied?

Failure to demonstrate that a marriage exists.

And I read on a previous post that NVC cannot deny you when it comes to the visa, that isn't their responsibility, it's the beneficiary's country's responsibility. Is that true as well?

The first part is true, the second part is not. The NVC does not make the decisions on visa applications. Neither does the visa applicant's country. The immigrant visa unit at the US consulate makes the decision.

Yodrak

Oh, so should my friend petition after all then? Her and her husband can demonstrate a wonderful marriage and it definitely does exist. So is that ALL there is to it then? The out of status presence in the U.S. wouldn't cause her petition to be denied if she did do an I-130? The USCIS wouldn't even pay any attention to it? Sheesh, I should probably just have her come on here and ask lol!

Thank you for clearing this up and any other replies are welcomed!

[pushbrk 13,044]

MegDan,

What are the reasons for an I-130 petition to get denied?

Failure to demonstrate that a marriage exists.

And I read on a previous post that NVC cannot deny you when it comes to the visa, that isn't their responsibility, it's the beneficiary's country's responsibility. Is that true as well?

The first part is true, the second part is not. The NVC does not make the decisions on visa applications. Neither does the visa applicant's country. The immigrant visa unit at the US consulate makes the decision.

Yodrak

Oh, so should my friend petition after all then? Her and her husband can demonstrate a wonderful marriage and it definitely does exist. So is that ALL there is to it then? The out of status presence in the U.S. wouldn't cause her petition to be denied if she did do an I-130? The USCIS wouldn't even pay any attention to it? Sheesh, I should probably just have her come on here and ask lol!

Thank you for clearing this up and any other replies are welcomed!

Whoa! Nobody has addressed how the overstay would be viewed at interview, just who would be making the decision. An approved petition only means the beneficiary is allowed to apply for a visa. Overstays are not generally ignored by Consular Officers. All this information is disclosed on the visa applications and is a matter of record in the passport etc. These situations are best dealt with by consulting qualified immigration attorneys.

[Yodrak 7]

MegDan,

Yes, you should. Passing information and responses through a 3rd party is an excellent way to generate mis-information, and there is usually detail that needs to be provided to answer what people often mistakenly believe to be a 'simple' question.

Also, you don't seem to grasp the difference between a petition and a visa application, or the roles of USCIS and the DoS consulates.

Yodrak

..... I should probably just have her come on here and ask lol!

.....

[MargotDarko 0]

MegDan,

What are the reasons for an I-130 petition to get denied?

Failure to demonstrate that a marriage exists.

And I read on a previous post that NVC cannot deny you when it comes to the visa, that isn't their responsibility, it's the beneficiary's country's responsibility. Is that true as well?

The first part is true, the second part is not. The NVC does not make the decisions on visa applications. Neither does the visa applicant's country. The immigrant visa unit at the US consulate makes the decision.

Yodrak

Oh, so should my friend petition after all then? Her and her husband can demonstrate a wonderful marriage and it definitely does exist. So is that ALL there is to it then? The out of status presence in the U.S. wouldn't cause her petition to be denied if she did do an I-130? The USCIS wouldn't even pay any attention to it? Sheesh, I should probably just have her come on here and ask lol!

Thank you for clearing this up and any other replies are welcomed!

Hello. Like pushbrk says, there's a big difference between having the petition approved and receiving the visa. An approved 1-130 only means that you're able to move on and apply for the visa, which invloves more forms and an interview.

EDIT: Sorry, Yodrak. I probably sound really repetitive now. I left the window open typing for too long while you were posting.

Edited May 2, 2007 by MargotDarko

[MegDan 0]

MegDan,

What are the reasons for an I-130 petition to get denied?

Failure to demonstrate that a marriage exists.

And I read on a previous post that NVC cannot deny you when it comes to the visa, that isn't their responsibility, it's the beneficiary's country's responsibility. Is that true as well?

The first part is true, the second part is not. The NVC does not make the decisions on visa applications. Neither does the visa applicant's country. The immigrant visa unit at the US consulate makes the decision.

Yodrak

Oh, so should my friend petition after all then? Her and her husband can demonstrate a wonderful marriage and it definitely does exist. So is that ALL there is to it then? The out of status presence in the U.S. wouldn't cause her petition to be denied if she did do an I-130? The USCIS wouldn't even pay any attention to it? Sheesh, I should probably just have her come on here and ask lol!

Thank you for clearing this up and any other replies are welcomed!

Whoa! Nobody has addressed how the overstay would be viewed at interview, just who would be making the decision. An approved petition only means the beneficiary is allowed to apply for a visa. Overstays are not generally ignored by Consular Officers. All this information is disclosed on the visa applications and is a matter of record in the passport etc. These situations are best dealt with by consulting qualified immigration attorneys.

Thank you very much for your response. I should have been more specific. I meant thank you to Yodrak about clearing up the NVC issue as far as denying visas.

As for the overstay or the out of status, I am pretty sure if she petitioned an I-130 for her husband, it wouldn't be overlooked at the interview. But would the USCIS Service Center (whether it be VSC, CSC, etc.) overlook it and would her chances be good for approval based on showing she has a very strong marriage and that it does exist?

Maybe I'm confusing everybody, which I hope is not the case. For example, she applies and gets her petition approved, it is forwarded to the NVC and she does all the necessary paperwork and everything and then she and her husband get an interview date after its sent to his country and the day of the interview she finds out they need a waiver because of the out of status situation in the U.S. That could happen, couldn't it? I tell her to just do the paperwork for the I-130, submit it and see what happens. But she feels that her husband will get denied because of his illegal presence in the U.S. So USCIS could deny his petition because of this or would they hear this at the interview? And could a USCIS Service Center send them a denial letter saying that they need a waiver?

Again, I'm sorry if I've confused anyone!

[Yodrak 7]

MargotDarko.

Overlapping posts are a frequent occurance - don't give it a second thought.

Yodrak

.....

EDIT: Sorry, Yodrak. I probably sound really repetitive now. I left the window open typing for too long while you were posting.

[MegDan 0]

Also, you don't seem to grasp the difference between a petition and a visa application, or the roles of USCIS and the DoS consulates.

Yodrak, I should have just asked my question in one simple sentence lol to avoid confusion! I'm a very detailed person so sometimes that can confuse things even more!

Anyways, I'm not even talking about a visa. I know the difference between a petition and a visa application too. I might not know too much about the roles of the USCIS and the DoS consulates, but that is why I'm asking this question.

I'll try asking my original question in a less confusing way! Could a USCIS Service Center deny an I-130 petition because of illegal presence (over 180 days) in the USA? Have you or anyone for that matter heard of that happening?

And would the USCIS Service Center send a denial letter saying that the person needed a waiver first? Or is the ONLY time you find out if you need a waiver or not is at the interview?

Thanks once again!

Edited May 2, 2007 by MegDan

[Yodrak 7]

MegDan,

I've already told you what would cause the USCIS to deny the petition.

Yodrak

Also, you don't seem to grasp the difference between a petition and a visa application, or the roles of USCIS and the DoS consulates.

Yodrak, I should have just asked my question in one simple sentence lol to avoid confusion! I'm a very detailed person so sometimes that can confused things even more!

Anyways, I'm not even talking about a visa. I know the difference between a petition and a visa application too. I might not know too much about the roles of the USCIS and the DoS consulates, but that is why I'm asking this question.

I'll try asking my original question in a less confusing way! Could a USCIS Service Center deny an I-130 petition because of illegal presence (over 180 days) in the USA? Have you or anyone for that matter heard of that happening?

And would the USCIS Service Center send a denial letter saying that the person needed a waiver first? Or is the ONLY time you find out if you need a waiver or not is at the interview?

Thanks once again!

[MegDan 0]

MegDan,

I've already told you what would cause the USCIS to deny the petition.

Yodrak

Ok, thank you.

[kitkat1 5]

She applies and gets her petition approved, it is forwarded to the NVC and she does all the necessary paperwork and everything and then she and her husband get an interview date after its sent to his country and the day of the interview she finds out they need a waiver because of the out of status situation in the U.S. That could happen, couldn't it

This is exactly what will happen. Assuming her petition is in order and she proves her marriage, it will be approved. As stated, view the petition as a request to have an interview at the US Consulate in his country. If he knows in advance that he has been out of status, he will need a waiver. He should plan on this and have the hardship letter and evidence from his USC wife ready at the time of the interview. Depending on how waivers are handled in his country, he may be able to submit the waiver after the denial at the interview. Then it's a matter of waiting for the waiver to be either denied or approved. During that wait time he cannot come back to the US.

If he is currently in the US, an important detail is if he overstayed a legal visa, he may very well be able to adjust his status in the US. They should first consult with a qualified attorney before doing anything, since the act of leaving the country "triggers" the ban.

You should also direct her to read about visa ineligibilities:

http://www.travel.state.gov/visa/frvi/inel...ities_1364.html

ALIENS UNLAWFULLY PRESENT.-

(i) In general.-Any alien (other than an alien lawfully admitted for permanent residence) who-

(I) was unlawfully present in the United States for a period of more than 180 days but less than 1 year, voluntarily departed the United States (whether or not pursuant to section 244(e)) prior to the commencement of proceedings under section 235(b(1) or section 240, and again seeks admission within 3 years of the date of such alien's departure or removal, or

(II) has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien's departure or removal from the United States,is inadmissible.

[payxibka 10,047]

It is not likely at the USCIS stage that a petition will be denied due to a visa overstay. It is very likely that the visa WILL be denied at the consulate and therefore requiring a waiver application.

[kitkat1 5]

Could a USCIS Service Center deny an I-130 petition because of illegal presence (over 180 days) in the USA? Have you or anyone for that matter heard of that happening?

No. USCIS service centers are concerned that the petitioner meets the requirements of the petition. They will process and approve the petition even when the petition clearly states that the beneficiary was illegally present.

Also, the petitioner is required to provide 100% truth on the petition - tell her that there is no reason to lie and lying on the paperwork will result in much more serious problems down the road.

[MegDan 0]

No. USCIS service centers are concerned that the petitioner meets the requirements of the petition. They will process and approve the petition even when the petition clearly states that the beneficiary was illegally present.

Also, the petitioner is required to provide 100% truth on the petition - tell her that there is no reason to lie and lying on the paperwork will result in much more serious problems down the road.

Thank you kitkat 1, that is what I thought but wanted to find out from the experts (you guys, of course) first! I'm telling her today to get the process started and just see what happens and hope for the best!

It is not likely at the USCIS stage that a petition will be denied due to a visa overstay. It is very likely that the visa WILL be denied at the consulate and therefore requiring a waiver application.

Thank you also, fwaguy for your response.

And to everyone else, thank you too!

Everyone's help and responses were very helpful! Thanks again!

Edited May 2, 2007 by MegDan