Use it or Lose It! How an I-130 Can Get Revoked

An I-130, Petition for Alien relative, can be automatically revoked under different circumstances. Revocation can occur if the petitioner withdraws the I-130, if the petitioner or beneficiary dies, upon legal termination of a marriage (upon which the I-130 is based), if an unmarried son or daughter of a lawful permanent resident marries, or if the lawful permanent resident petitioner loses his or her status (apart from being naturalized).

When filing for a family member, whether as an immediate relative or a family-based preference category, it is important to remember that there is a deadline to apply for a green card after the I-130 is approved. Before we give you specific examples, it is important to understand the general process, especially when adjusting status (interviewing in the U.S.) versus consular processing (interviewing at a U.S. consulate).

If the USC petitioner and green card applicant are in the U.S., the I-130 will be filed at USCIS. Let’s assume that the couple decides to file the I-130 without the green card application. Many clients choose to do this (as opposed to file the I-130 and I-485 together) if they entered without inspection, have unlawful presence, have criminal convictions, or are otherwise inadmissible. As long as the I-130 petitioner is not subject to the Adam Walsh Act and have proven a legitimate relationship to the green card applicant, the I-130 will be approved. Once approved, the clock begins on adjusting status.

Now let us give you two client cases. In the first one, the couple retained an attorney to file the I-130 as an immediate relative. The green card applicant entered without inspection (EWI). The attorney filed the I-130 which was approved in September of 2009. The I-130 approval notice read:

“The above petition has been approved. The petition indicates that the person for whom you are petitioning is in the United States and will apply for adjustment of status. The evidence indicates that he or she is not eligible to file an adjustment of status application…Because the person for whom you are petitioning is not eligible to adjust, we have sent the approved petition to the Department of State National Visa Center (NVC)…NVC processes all approved immigrant visas and which consular post is the appropriate consulate to complete visa processing. NVC will then forward the approved petition to that consulate.”

Since the foreign national was not inspected and admitted into the U.S., she was not eligible to adjust status. She had to depart the U.S. to consular process. We were able to get our client “paroled” since she was married to a veteran under the “parole-in-place” program. This cured the entry without inspection. In December of 2015, we filed her green card application in the U.S. and her case was approved without issue. The I-130 had not been revoked in over 6 years. The couple remained married, the petitioner was still alive, the couple still lived together. Now let’s look at another client’s case.

In a family-based preference case, after the I-130 is approved, the case is transferred to the NVC for the visa number to become available. When the visa number finally became available, the NVC will send a notice (to the foreign national’s address on file), notifying him or her that a visa is available, providing a case number, and instructing him or her how to pay the immigrant visa fees.

Client’s father filed an I-130 in the F2B category (unmarried son of a lawful permanent resident). The petition was approved in August of 1995. However, since then, the client’s father naturalized, then he got married. Thankfully, the I-130 was not cut-off by any of these actions. Instead, the client’s category simply changed from F2B to F1 (unmarried son of a U.S. citizen) to F3 (married son of a USC). Note that had he married before his father naturalized, the I-130 would have been cut-off (since there is no visa category for married son of a lawful permanent resident).

The I-130 approval notice read:

“The above petition has been approved. We have sent the original visa petition to the Department of State National Visa Center…NVC processes all approved immigrant visa petitions that need consular action.”

Since the visa petition was filed under a family-based preference category, unlike an immediate relative category, the petition was subject to a quota. Also, since the priority date was not current, the I-130 file was transferred to the NVC, where it “sat on a shelf” until a visa number became available. Our client came to us wanting to adjust status. He entered without inspection, but was protected under 245(i).

While reviewing our client’s documents, we saw that a case number had been assigned by the NVC. Since the I-130 approval was so old, we contacted the U.S. Consulate to verify whether the I-130 was revoked. We were informed that the client had been notified twice in 1998 and 1999 that the I-130 had been revoked under 203(g), “Termination following failure of applicant to apply for visa”. This was a major blow to our client.

We decided to conduct a further investigation. After several hours of review, we discovered that the revocation was in error. We reviewed the applicable visa bulletins and noticed that the priority date did not become current for the first time until 2002! We have a basis to file a request to reinstate the I-130 based on this error.

Now let’s look at a third example. Client’s father filed an I-130 for him in the F3 category (married son of a U.S. citizen). The petition was approved in June of 1998. However, the father passed away in March 6, 2007. The U.S. Consulate informed us that the petition was terminated in 2008 under 203(g). We conducted a review of the timeline and submitted a legal memorandum explaining that the I-130 was not revoked under 203(g), but was revoked under an operation of law (upon the father’s death). Since the revocation occurred upon the father’s death, we could file a request to reinstate the I-130.

Takeaway Messages:

Always read the paragraphs on the I-130 approval notice. It will tell you whether the foreign national can adjust status or whether the foreign national must consular process.

Keep your address current with the NVC. When the priority date becomes current, apply for an immigrant visa before one year passes. Also, notify the NVC if you decide to adjust status (instead of consular process). If for whatever reason, you cannot file within a year, contact the NVC to inform them that you are unable to file. Continue to contact NVC on a yearly basis in order to preserve the validity of the I-130.

Where there is inaction on an immigrant visa case, the NVC can legally revoke the I-130 approval. The NVC is only obligated to send you 2 notices before it can revoke the petition. In all of our clients’ cases, since they moved around, some received only one warning notice, and others received none. We were able to determine whether the I-130 was revoked by contacting the U.S. Consulate.

If a petitioner dies after the I-130 is revoked, the government is under no obligation to notify you that the petition has been revoked. This makes sense since the NVC would not know of the petitioner’s death unless it was reported.

If you are unsure whether the I-130 has been revoked, contact the U.S. Consulate where the case was being handled.

We offer a free case evaluation by phone. We are available Monday through Friday from 8:30 am to 8:00 pm and Saturday from 8:00 am to 12:00 pm. In-person consultations are by appointment only. Please call our office at 301.529.1912 or click here to contact us. Please be sure to provide a timeline of events along with details of your entire immigration history.