Withdraw I-130 and reapply through DCF

[FamilyS 2]

Hello.

 

We are living overseas, my husband is a USC and we have been married for 9 years and have 3 young kids (8, 5, and 1). 

We have been living overseas but for our kids medical care and educational support (one of our kids needs medical care and special education) we want to go and live in the States.

My husband just got a job offer in the US, and he filed I-130 for me electronically to USCIS.

That time, we didn't know about the DCF. And it looks we are eligible to do so for humanitarian reasons

(our child who is also a USC needs medical care and educational support, and both of us parents are the vital caregiver)

and my husband being offered a job as a government worker and he is a veteran.

We just filed in July and received a letter from the USCIS (Notice of Action). Basically we just got a receipt from Nebraska Service Center.

We are thinking about withdrawing I-130 from there and reapply through DCF. 

Is it allowed to do so?

Is there anything we need to be aware of to pursue this ?

 

We appreciate any input.

[Villanelle 4,122]

1 hour ago, FamilyS said:

 

Is it allowed to do so?

Is there anything we need to be aware of to pursue this ?

 

We appreciate any input.

Of course you are allowed to do so.

 

What you should be aware of:

 

You will not get the fees back you paid and will need to pay again. 

 

The first step would be getting the 130 withdrawn.  You then need to contact the Embassy and inquire on how/where to apply for permission to file DCF because you can't just file it you first have to get permission for them to process it.  Once they decide you qualify and are going to let you do DCF the Embassy will let you know what you need to do. You can use the guides on here because DCF is basically the exact same process as the CR/IR process its just that instead of waiting for USCIS to process it stateside which takes a long time the Embassy does in a matter of weeks. 

 

If they reject your request for DCF you can attempt to have your congressman assist you in asking for it but sometimes it's just a no , no DCF for you sorry doesn't matter who is helping you request it.  If so you will need to file the 130 again from scratch. You only filed it a month or so ago so you aren't losing a lot of time,  it's mostly the fees in this case. 

 

 

[millefleur 5,046]

1 hour ago, Villanelle said:

The first step would be getting the 130 withdrawn.

I'm just curious, is it necessary to withdraw the I-130 first before contacting the Embassy? I would think just contact the Embassy first, leave the I-130 that was already filed pending, and see what the Embassy says. Since the OP has humanitarian reasons as mentioned, I don't think they would frown upon the fact that he already filed an I-130? I could be wrong but just a thought. If the Embassy were so kind as to consider the case for DCF, then maybe the I-130 could be cancelled after they accept? Just wondering if that's possible.

[carmel34 3,631]

9 hours ago, FamilyS said:

We are living overseas, my husband is a USC and we have been married for 9 years and have 3 young kids (8, 5, and 1). 

We have been living overseas but for our kids medical care and educational support (one of our kids needs medical care and special education) we want to go and live in the States.

If you're asking the US embassy abroad for permission to go the DCF route, based on exceptional humanitarian reasons, they will ask for documentation to prove that your children cannot receive educational support and medical care in the country where you now live.  This will be difficult to prove as you have been living there as a married couple for 9 years, unless it is a country where such services are not available at all, or of such poor quality that your child's life is at risk if you do not immigrate immediately.  So think about what evidence you could provide to make the humanitarian case as strong as possible.  Good luck!

[Villanelle 4,122]

@millefleur

 

Yes it is necessary. Ideally one should attempt to request Dcf first and if denied apply for the 130. I believe the pending 130 needs to be withdrawn due to a technical issue of jurisdiction. The 130 is processed by USCIS which is under DHS department homeland security and the Embassy operates under DOS department of state. So the Embassy/DOS has no authority to withdraw or cancel it and for whatever reason cannot move forward with DCF if you have a 130 pending stateside.  

 

Also to add on to @carmel34 reply a short notice job relocation is reason enough to get DCF so the OP may want to consider trying just that first.  Typically with immigration it's an all or nothing scenario. If you list multiple reasons they need to approve all of them. So I would start with job relocation only at first and if rejected you can try again with additional reasons. The process of asking for DCF is quick.  You will be told yes or no very quickly 

[Chancy 6,241]

6 hours ago, millefleur said:

If the Embassy were so kind as to consider the case for DCF, then maybe the I-130 could be cancelled after they accept? Just wondering if that's possible.

 

That's what I would hope as well.  But just for everyone's reference, DOS FAM actually states that the consulate is not authorized to accept DCF if an I-130 has already been filed (with USCIS) for the same beneficiary -- https://fam.state.gov/fam/09FAM/09FAM050402.html

 

"When the Department of State is Not Authorized to Accept and Adjudicate Form I-130:

[...]

(2) (U) Petitioners Who Have Already Filed Electronically or Domestically: USCIS does not authorize the Department of State to accept a local filing abroad if the petitioner has already filed a Form I-130 domestically for the same beneficiary.  If exigent circumstances exist, the petitioner should request expedited processing for the electronic or domestically-filed petition.  You should direct the petitioner to the USCIS website for information about the process to request expedited adjudication."

 

[FamilyS 2]

Thank you all for great information！

Yes, we were wondering if we could just called and see if it’s possible to see if they say yes, then withdraw the pending I-130.

So thank you for the clarification.

 

We will try the job relocation first.

We are to receive a letter from an American dr. this week just in case.

She once recommended us to go to the US. 

 

Thank you so much everyone!

 

[millefleur 5,046]

4 hours ago, FamilyS said:

 

We will try the job relocation first.

We are to receive a letter from an American dr. this week just in case.

She once recommended us to go to the US. 

Good luck! Please do let us know the outcome.

[FamilyS 2]

@millefleur we will! Right now it's a battle to call the Embassy to actually speak with a real person... 

[SLock 2]

Hello, we are in a similar position. I contacted the embassy about withdrawing and re-filing - we received the following:

 

"Thank you for your email, we cannot accept an I-130 petition filed at the embassy for you as you have a pending application with USCIS. If you wish to expedite this petition you will need to contact USCIS, please visit www.uscis.gov for more information."

 

I (US citizen) have had a job offer, so I think we clearly qualify - but I'm guessing the embassy won't confirm if we are eligible and we just have to take the risk? Has anyone had any luck in getting the embassy to confirm they'll accept the new petition before withdrawing the original? 

[FamilyS 2]

Welp, this is what we received from the embassy😰:

 

"We regret to inform you that we are not authorized to accept a petition if the petitioner has already filed a petition with USCIS for the same beneficiary. Unfortunately, filing a withdrawal request would not change the situation."

 

Is this even true ?

 

[FamilyS 2]

So the Embassy is saying even if we withdraw our I-130 from the USCIS, they can't accept I-130 for the same beneficiary.

We are in Japan. 

 

Looks like we need to stick with the USCIS route. It is going to be a long waiting...

 

[millefleur 5,046]

10 hours ago, FamilyS said:

Welp, this is what we received from the embassy😰:

 

"We regret to inform you that we are not authorized to accept a petition if the petitioner has already filed a petition with USCIS for the same beneficiary. Unfortunately, filing a withdrawal request would not change the situation."

Well, that's really frustrating. It might be specific to that embassy. Which country are you in, if you don't mind sharing?

[FamilyS 2]

18 minutes ago, millefleur said:

Well, that's really frustrating. It might be specific to that embassy. Which country are you in, if you don't mind sharing?

Japan. 

[millefleur 5,046]

35 minutes ago, FamilyS said:

Japan. 

Ah, sorry I just noted that you stated it above. According to some old threads here on VJ, Japan has always been iffy with DCF as they prioritize military personnel.

 

So, basically what they are saying is, if you already filed an I-130 with USCIS, forget the idea of exceptional circumstances DCF, you just have to go the long route.