Form I-130 Training
Petition for Alien Relative
Texas Service Center
October 2010
References:
INA §§ 201(b), 203(a);
8 C.F.R. §§ 204.1; 204.2(a),(d),(f),(g),(h);
Adjudicator’s Field Manual, Chapter 21
1
Definitions

Immediate Relatives (IR) are defined in INA §
201(b)(2)(A)(i) as aliens related to United
States citizens (USC) as:



Spouses
Unmarried children under the age of 21
Parents
*Not subject to worldwide levels or direct numerical limitations on visa
issuance AND
Have an immigrant visa immediately available upon approval of the
Form I-130
2
Family-Based
Immigrant Classifications
Immediate Relatives



IR-1
 CR-1
Spouse of USC married more than 2 years (Form I-130)
(Spouse of USC married less than 2 years)
IR-2
 CR-2
Child of USC (Form I-130)
(Child of CR-1)
IR-5
Parent of USC (Form I-130)
3
Definition of Preference
Classification

Preference Classifications are defined in INA § 203(a)
as aliens related to United States citizens (USC) or
lawful permanent residents (LPR) as:





Spouses of a LPR
Unmarried children under the age of 21 of a LPR
Unmarried Sons and Daughters of any age
Married Sons and Daughters of a USC of any age
Brothers and Sisters of a USC of any age
* Subject to worldwide levels or direct numerical limitations on visa
issuance AND
Must wait for an immigrant visa based on the Department of State’s Visa
Bulletin upon approval of the Form I-130
4
Family-Based
Immigrant Classifications
Preferences
1st Preference

F-11
2nd A

F-21 / C-21

F-22 / C-22

F-23
Unmarried Son or Daughter of USC (Form I-130)
2nd Preference
Spouse of LPR (Form I-130)
Child of LPR (Form I-130)
Child of F-21 or F-22
2nd B

F-24 / C-24 Unmarried Son or Daughter of LPR (Form I-130)

F-25
Child of F-24
5
Family-Based
Immigrant Classifications
Preferences
3rd Preference

F-31 / C-31

F-32

F-33
Married Son or Daughter of USC (Form I-130)
Spouse of F-31
Child of F-31 or F-32
4th Preference

F-41
Brother or Sister of USC (Form I-130)
6
Visa Bulletin

The Department of State regulates the worldwide levels of visa
allocations in a monthly publication called the Visa Bulletin. The
Visa Bulletin can be found at the following website:
www.travel.state.gov/visa
Here is an example of the Visa Bulletin for Family Preferences:
All Chargeability
Areas Except
Those Listed
CHINAmainland born
INDIA
MEXICO
PHILIPPINES
1st
22JUL03
22JUL03
22JUL03
08JUN92
08OCT93
2A
01JUN05
01JUN05
01JUN05
01MAR03
01JUN05
2B
22AUG01
22AUG01
22AUG01
22MAY92
01MAY98
3rd
15JAN01
15JAN01
15JAN01
08JUL91
15OCT91
4th
15APR99
15APR99
15APR99
08OCT95
01DEC86
Family
7
Working Definitions – Spouse
Marriage


The validity of a marriage is generally governed by
the place where it was celebrated or contracted. See
Matter of P-, 4 I&N Dec. 610 (BIA 1952); see also
Matter of Weaver, 16 I&N Dec. 730 (BIA 1979)
A marriage not valid in the place where the couple
has lived and will continue to live is invalid even if
legal in the place where celebrated. See Matter of
Zappia, 12 I&N Dec. 439 (BIA 1967)

Example: Marriage between first cousins is valid in some
U.S. states but not in other U.S. states.
8
Working Definitions – Spouse
Polygamous Marriages

A polygamous marriage (an individual with
two or more spouses at the same time) is
never recognized as valid for immigration
purposes even if it is valid where the
polygamous marriage was contracted.
See Matter of H-, 9 I&N Dec. 640 (BIA 1962)
9
Working Definitions – Spouse
Common-Law Marriages

A kind of marriage recognized by some U.S.
states and some foreign countries for
individuals who hold themselves out to the
public as married without a civil status. See
Matter of Garcia, 16 I&N Dec. 623 (BIA
1978); see also Matter of Reyes, 16 I&N Dec.
436 (BIA 1978).
10
Working Definitions – Spouse




Divorce
A divorce must be legally recognized where the parties reside.
See Matter of Weaver, 16 I&N Dec. 730 (BIA 1979)
A divorce conducted at a foreign consulate inside the United
States is not recognized in the United States. See Matter of
Hassan, 15 I&N Dec. 16 (BIA 1976)
A couple who is legally separated is ineligible for a spousal
relationship and considered the same as a divorced couple for
immigration purposes. See Matter of Lenning, 17 I&N Dec. 476
(BIA 1980)
Divorce is not recognized in the Philippines before March 11,
1917 or after August 29, 1950, but a divorce may be obtained in
another country where it is permissible if the parties reside in
that country. Filipino courts may, however, issue legal
separations or annulments. See Matter of Whitehurst, 12 I&N
Dec. 299 (BIA 1967)
11
Adjudication of Immediate Relative
Spouse (IR-1)
& Spouse of LPR (F-21)

Initial Evidence
Copy of the record of marriage





civil marriage certificates from the country’s government
household registries or family registries
Religious marriage certificates are generally not acceptable
evidence
Documentation for termination of all prior marriages
for either spouse if ever previously married
Passport-style color photo for both petitioner and
beneficiary
12
Adjudication of Spousal
Petitions
Initial Evidence (Continued)


Signed and completed Form G-325A, Biographical
Information, for both petitioner and beneficiary
Proof of petitioner’s U.S. Citizenship or LPR status







City, county, or state-issued birth certificate
Biographical page of United States passport
Certificate of Naturalization or Citizenship
Report of Birth Abroad of a Citizen of the United States (DOS Form
FS-240)
Statement executed by a U.S. consular officer certifying U.S.
citizenship and the petitioner is the bearer of a U.S. passport
Alien Resident Card (Form I-551)
Foreign passport with temporary I-551 stamp showing LPR
status
13
Bona Fides of Marriage
Relationship

According to the instructions for Form I-130 [see 8
C.F.R. § 103.2(b)(1)], the petitioner in addition to the
required evidence “should also submit one or more of
the following types of documentation that may
evidence the bona fides of the marriage”. Additional
evidence to establish the bona fides of the marriage
when necessary may be:




Documentation of joint ownership or property;
A lease of joint tenancy of a common residence;
Documentation of co-mingling of financial resources;
Birth certificates of children born to the petitioner and the
beneficiary;
14
Bona Fides of Marriage
Relationship

Affidavits sworn to or affirmed by third parties having
personal knowledge of the bona fides of the marital
relationship.



Each affidavit must contain the full name and address, date
and place of birth of the person making the affidavit, his or her
relationship to the petitioner or beneficiary (if any), and
complete information and details explaining how the person
acquired his or her knowledge of the marriage.
In order to accept affidavits, there must be at least two
affidavits at minimum and each affidavit ought to be made by
someone at least 18 years old. See 8 C.F.R. § 103.2(b)(2)(i).
Any other relevant documentation to establish an ongoing
marriage.
15
Adjudication of Immediate Relative
Child (IR-2)
& Child of LPR (F-22)


Initial Evidence
Children Born In Wedlock
Proof of petitioner’s U.S. Citizenship or LPR status
If the petitioner is the mother:


A copy of the child’s birth record giving both the child’s
name and the mother’s name
If the petitioner is the father:


A copy of the child’s birth record giving both the child’s
name and the father’s name
A copy of the father’s record of marriage to the child’s
mother
16
Record of Birth


Some U.S. states and countries issue “abstracts” of
birth records, birth cards, or short forms of the birth
certificate. These documents are insufficient because
they do not list the parent(s) names on them; the
long form is required.
Delayed birth certificates (“delayed” being defined as
registered by the city, county, or state more than six
months after the date of birth) may be insufficient to
establish a parent-child relationship or citizenship
because of the delay between the birth event and the
public recognition of the child; secondary evidence
may be necessary. See Matter of Serna, 16 I&N Dec.
643 (BIA 1978)
17
Adjudication of Child
Classifications



Initial Evidence
Children Born Out of Wedlock
Proof of petitioner’s U.S. Citizenship or LPR status
If petitioner is the mother:

A copy of the child’s birth record giving both the child’s name and the
mother’s name
If the petitioner is the father:

A copy of the child’s birth record giving both the child’s name and the
father’s name

Evidence of legitimation (if required by country of child’s birth) of the
child by the father under the laws of the child’s residence or under the
laws of the father’s residence

Evidence of the father’s legal custody of the child

If the child was not legitimated (if required by country of child’s birth),
evidence of a bona fide parent-child relationship prior to the child’s 21st
birthday
18
Familial Relationship
Summary: Legitimated
NOTE!

A child that is born out of wedlock


but has been legitimated
 under laws of country where the child resides
or
 under the laws where the father resides
or
is born in a country where legitimation laws have been eliminated
or do not exist
only has to prove he or she is the biological child of the petitioning
parent. It is not a requirement that the child and parent have an
ongoing relationship in fact. See INA § 101(b)(1)(C); see also
Matter of Reyes, 17 I&N Dec. 512 (BIA 1980)
19
Familial Relationship
Summary: Not Legitimated

NOTE!
A child that is born out of wedlock


and has not been legitimated
 under laws of country where the child resides
or
 under the laws where the father resides
and
is born in a country where legitimation laws have not been
eliminated and continue to exist
must prove that he or she is the biological child of parent and
prove a bona fide parent-child or ongoing relationship in fact in a
visa petition after November 6, 1986. Prior to November 6,
1986, the child must have been legitimated. See INA §
101(b)(1)(C); see also Matter of Attembe, 19 I&N Dec. 512 (BIA
1980)
20
Bona Fide Parent-Child
Relationship


A bona fide parent-child relationship establishes
more than a mere biological relationship and
includes emotional and/or financial ties, a
genuine concern and interest by the parent for
the child’s support, instruction, and general
welfare.
Evidence of a bona fide parent-child relationship
includes the parent and the child actually having
lived together or the parent holding the child out
as being his own child and the parent has
provided for some or all of the child’s needs or
the parent’s behavior has evidenced a genuine
concern for the child.
21
Evidence of a Bona Fide
Parent-Child Relationship

Evidence to establish a bona fide parent-child
relationship may include:









Baptismal certificate for the child
Records issued by a religious organization
School records for the child
Parent’s insurance policies (life, medical, dental, etc.) where the
child is a dependent
Medical records for the child (vaccines, doctor bills, or hospital
bills)
Military records showing claimed family members’ names
and/or military pay allotments
Military registration forms showing claimed family members’
names
Social agency or government agency records for the child
Parent’s income tax returns which include the child as a
dependent
22
Evidence of a Bona Fide
Parent-Child Relationship







Court order(s) granting legal custody of the child to the
parent
Ration cards (records listing names of all family members)
Property documents listing both parents’ names
Voting records listing all family members
Receipts for remittances, money orders, cancelled checks,
drafts, or other documentation of financial support from the
parent to the child
Dated correspondence between the parent and the child (if
living apart)
Government-issued identification papers, passports, deeds,
business transactions, family Bible entries, or records of
family events
23
Evidence of a Bona Fide
Parent-Child Relationship


There is no legal requirement that the evidence
pertaining to a bona fide parent-child relationship
must include both the child’s name and the parent’s
name in order to link the two together. For example,
evidence of monetary support may not bear the
child’s name.
In addition, the fact that the evidence includes both
the child’s name and the parent’s name may not be
sufficient to establish proof of a bona fide parent
child relationship. For example, the appearance of
the father’s name on a school document may only
establish paternity.
24
Adjudication of Child
Classifications
Initial Evidence
Stepchildren

Proof of petitioner’s U.S. Citizenship or LPR status
A copy of the child’s birth record giving the child’s name and the
child’s natural parent’s name
A copy of the record of marriage between the child’s natural
parent and the stepparent
 In accordance with INA § 101(b)(1)(B), the marriage
between the child’s biological parent and the stepparent
must have occurred before the child’s 18th birthday.

Documentation of all terminations of any prior marriages for
either the child’s natural parent or the child’s stepparent


25
Adjudication of Child
Classifications


Initial Evidence
Adopted Children
Proof of petitioner’s U.S. Citizenship or LPR status
A copy of the legal or official adoption decree(s) for the child





*Important* An adoption takes place under the laws where the
adoption occurred, not under U.S. law unless adopted in the U.S.
Child must have been adopted while under the age of 16 or
Adopted within the same family as his or her natural sibling while
under the age of 18
Evidence of the adopted child residing with the adopting parents
for 2 years before or after the adoption
Evidence of legal custody of the child with the adopting parents
for 2 years before or after the adoption
26
Adjudication of Unmarried Sons or
Daughters of USC (F-11)
& LPR (F-24)

A unmarried son or daughter is defined
as any person (whether related
biologically or through adoption or
legitimation) over the age of 21 at the
time of filing the I-130
27
Adjudication of Unmarried
Sons or Daughters

Two important legal principles govern the
adjudication of an unmarried son or daughter:


1) An unmarried son or daughter beneficiary must have met
the definition of a child under INA § 101(b)(1) at some point
in the son or daughter’s life before his or her 21st birthday.
See Matter of Au Yeung, 16 I&N Dec. 540 (BIA 1978).
2) An unmarried son or daughter whose relationship to his
or her parent or step-parent is created after the child 21st
birthday (or 18th birthday for stepchild) is ineligible for F-11
or F-24 classification. See Matter of Coker, 14 I&N Dec. 521
(BIA 1974).
28
Adjudication of Unmarried
Sons or Daughters



Initial Evidence
Children Born In Wedlock
Proof of petitioner’s U.S. citizenship or LPR status
Copy of any prior terminations of marriages for beneficiary (i.e.,
divorce, annulment, or record of death)
If petitioner is the mother:


A copy of the child’s birth record giving both the child’s name and
the mother’s name
If the petitioner is the father:


A copy of the child’s birth record giving both the child’s name and
the father’s name
A copy of the father’s record of marriage to the child’s mother
29
Adjudication of Unmarried
Sons or Daughters



Initial Evidence
Children Born Out of Wedlock
Proof of petitioner’s U.S. citizenship or LPR status
Copy of any prior terminations of marriages for beneficiary
If petitioner is the mother:


A copy of the child’s birth record giving both the child’s name and the
mother’s name
If the petitioner is the father:



A copy of the child’s birth record giving both the child’s name and the
father’s name
Evidence of legitimation (if required by country of child’s birth) of the child
by the father under the laws of the child’s residence or under the laws of
the father’s residence
If the child was not legitimated (if required by country of child’s birth),
evidence of a bona fide parent-child relationship prior to the child’s 21st
birthday
30
Adjudication of Unmarried
Sons or Daughters





Initial Evidence
Stepchildren
Proof of petitioner’s U.S. citizenship or LPR status
Copy of any prior terminations of marriages for
beneficiary
A copy of the child’s birth record giving the child’s
name and the child’s natural parent’s name
A copy of the record of marriage between the child’s
natural parent and the stepparent
Documentation of all terminations of any prior
marriages for either the child’s natural parent or the
child’s stepparent
31
Adjudication of Unmarried
Sons or Daughters





Initial Evidence
Adopted Children
Proof of petitioner’s U.S. citizenship or LPR status
Copy of any prior terminations of marriages for
beneficiary
A copy of the legal or official adoption decree(s) for
the child
Evidence of legal custody of the child with the
adopting parents for 2 years before or after the
adoption
Evidence of the adopted child residing with the
adopting parents for 2 years before or after the
adoption
32
Adjudication of Married Sons or
Daughters of USC (F-31)

A married son or daughter is defined as
any person (whether related biologically
or through adoption or legitimation),
regardless of age, who is currently
married at the time of filing the I-130.
33
Adjudication of
Married Sons or Daughters

Two important legal principles govern the
adjudication of a married son or daughter:


1) A married son or daughter beneficiary must have met the
definition of a child under INA § 101(b)(1) at some point in
the son or daughter’s life before his or her 21st birthday. See
Matter of Au Yeung, 16 I&N Dec. 540 (BIA 1978).
2) A married son or daughter whose relationship to his or
her parent or step-parent is created after the child 21st
birthday (or 18th birthday for step-parent) is ineligible for F31 classification. See Matter of Coker, 14 I&N Dec. 521 (BIA
1974).
34
Adjudication of
Married Sons or Daughters
Initial Evidence
Children Born In Wedlock




Proof of petitioner’s U.S. citizenship
Copy of beneficiary’s record of marriage if other evidence suggests
beneficiary is unmarried. Otherwise, the marriage record is not an
automatic requirement for every case.
Copy of any prior terminations of marriages for beneficiary (i.e.,
divorce, annulment, or record of death)
If petitioner is the mother:


A copy of the child’s birth record giving both the child’s name and the
mother’s name
If the petitioner is the father:


A copy of the child’s birth record giving both the child’s name and the
father’s name
A copy of the father’s record of marriage to the child’s mother
35
Adjudication of
Married Sons or Daughters




Initial Evidence
Children Born Out of Wedlock
Proof of petitioner’s U.S. citizenship
Copy of beneficiary’s record of marriage
Copy of any prior terminations of marriages for beneficiary
If petitioner is the mother:


A copy of the child’s birth record giving both the child’s name and the
mother’s name
If the petitioner is the father:



A copy of the child’s birth record giving both the child’s name and the
father’s name
Evidence of legitimation (if required by country of child’s birth) of the child
by the father under the laws of the child’s residence or under the laws of
the father’s residence
If the child was not legitimated (if required by country of child’s birth),
evidence of a bona fide parent-child relationship prior to the child’s 21st
birthday
36
Adjudication
Married Sons or Daughters
Initial Evidence
Stepchildren






Proof of petitioner’s U.S. citizenship
Copy of beneficiary’s record of marriage
Copy of any prior terminations of marriages for beneficiary
A copy of the child’s birth record giving the child’s name
and the child’s natural parent’s name
A copy of the record of marriage between the child’s
natural parent and the stepparent before the child’s 18th
birthday
Documentation of all terminations of any prior marriages
for either the child’s natural parent or the child’s
stepparent
37
Adjudication of
Married Sons or Daughters
Initial Evidence
Adopted Children






Proof of petitioner’s U.S. citizenship
Copy of beneficiary’s record of marriage
Copy of any prior terminations of marriages for beneficiary
A copy of the legal or official adoption decree(s) for the
child
Evidence of legal custody of the child with the adopting
parents for years before or after the adoption
Evidence of the adopted child residing with the adopting
parents for 2 years before or after the adoption
38
Adjudication of Immediate
Relative Parent (IR-5)


Initial Evidence
Parents
Proof of petitioner’s U.S. citizenship
If beneficiary is the mother:


A copy of the petitioner’s birth record giving both the petitioner’s name as
the child and the mother’s name
If the beneficiary is the father:




A copy of the petitioner’s birth record giving both the petitioner’s name as
the child and the father’s name
A copy of the father’s record of marriage with the petitioner’s mother
OR
Evidence of legitimation (if required by country of petitioner’s birth) of the
petitioner by the father under the laws of the petitioner’s residence or under
the laws of the petitioner’s residence
If the petitioner was not legitimated (if required by country of petitioner’s
birth), evidence of a bona fide parent-child relationship prior to the
petitioner’s 21st birthday
39
Adjudication of Immediate
Relative Parent (IR-5)



Initial Evidence
Step-Parents
Proof of petitioner’s U.S. citizenship
If beneficiary is the step-father:

A copy of beneficiary’s record of marriage to the petitioner’s mother

A copy of the petitioner’s birth record giving both the petitioner’s name
as the child and the mother’s name
If the beneficiary is the step-mother:

A copy of the record of marriage of the beneficiary to the petitioner’s
father

A copy of the petitioner’s birth record giving both the petitioner’s name
as the child and the father’s name
OR

Evidence of legitimation (if required by country of petitioner’s birth) of
the petitioner by the father under the laws of the petitioner’s residence
or under the laws of the petitioner’s residence

If the petitioner was not legitimated (if required by country of
petitioner’s birth), evidence of a bona fide parent-child relationship
prior to the petitioner’s 21st birthday
40
Adjudication of Immediate
Relative Parent (IR-5)
Initial Evidence
Adoptive Parents




Proof of petitioner’s U.S. citizenship
A copy of the legal or official adoption decree(s) for
the petitioner
Evidence of legal custody of the petitioner with the
adopting beneficiary parent for 2 years before or
after the adoption
Evidence of the petitioner residing with the
beneficiary parent for 2 years before or after the
adoption
41
Special Cases – Parents


A USC petitioner must be at least 21 years old in
order to file a Form I-130 for his or her parent(s). 8
C.F.R. § 204.2(f)(1); see also Matter of Hassan, 16
I&N Dec. 16 (BIA 1976).
A USC petitioner must have been considered a child
born in wedlock, a legitimated child, an adopted
child, or considered to have had a bona fide parentchild relationship prior to the petitioner reaching 21
years of age in order to file a Form I-130 on behalf of
his or her parent. See Matter of Quispe, 16 I&N Dec.
174 (BIA 1977).
42
Adjudication of Brothers or Sisters
of USC (F-41)

Three important legal principles govern the adjudication of a
petition for a brother or a sister:



1) A petitioning brother or sister only requires one parent in
common with the beneficiary (whether related biologically,
through adoption, legitimation, or marriage). See Matter of
Bourne, 16 I&N Dec. 367 (BIA 1977).
2) The petitioning brother or sister and beneficiary brother
or sister both must have met the definition of a child under
INA § 101(b)(1) prior to their 21st birthdays. See Matter of
Coker, 14 I&N Dec. 521 (BIA 1974).
3) A stepbrother-stepsister relationship may continue to
exist even after the termination of the marriage creating the
step relationship if there is evidence of a continuing
relationship in fact. See Matter of Mourillon, 18 I&N Dec.
122 (BIA 1979).
43
Adjudication of
Brothers or Sisters


Initial Evidence
Brother or Sister Born In Wedlock
Proof of petitioner’s U.S. citizenship
If the common parent is the mother:


A copy of both the petitioner’s and beneficiary’s birth record
giving both the child’s name and the mother’s name
If the common parent is the father:


A copy of both the petitioner’s and beneficiary’s birth record
giving both the child’s name and the father’s name
A copy of the father’s record of marriage to the brother’s or
sister’s mother
44
Adjudication of
Brothers or Sisters


Initial Evidence
Brother or Sister Born Out of Wedlock
Proof of petitioner’s U.S. citizenship
If the common parent is the mother:


A copy of both the petitioner’s and beneficiary’s birth record giving
both the child’s name and the mother’s name
If the common parent is the father:



A copy of both the petitioner’s and beneficiary’s birth record giving
both the child’s name and the father’s name
Evidence of legitimation (if required by country of child’s birth) of
the child by the father under the laws of the child’s residence or
under the laws of the father’s residence
If the child was not legitimated (if required by country of child’s
birth), evidence of a bona fide parent-child relationship prior to the
child’s 21st birthday
45
Adjudication of
Brothers or Sisters




Initial Evidence
Stepbrother or Stepsister
Proof of petitioner’s U.S. citizenship
A copy of the petitioner’s and beneficiary’s
birth record giving the child’s name and the
child’s natural parents’ name
A copy of the record of marriage between the
petitioner’s and beneficiary’s stepparents
Documentation of all terminations of any
prior marriages for either stepparent
46
Adjudication of
Brothers or Sisters




Initial Evidence
Adopted Brother or Sister
Proof of petitioner’s U.S. citizenship
A copy of the legal or official adoption
decree(s) for the brother or sister
Evidence of legal custody of the child with the
adopting common parent(s) for 2 years
before or after the adoption
Evidence of the adopted child residing with
the adopting common parent(s) for 2 years
before or after the adoption
47
Special Cases –
Brother or Sister

A USC petitioner must be at least 21
years old in order to file a Form I-130
for his or her brother or sister. See 8
C.F.R. § 204.2(g)(1)
48
Special
Considerations
49
Adam Walsh Act

On July 27, 2006, the President signed the
Adam Walsh Child Protection and Safety Act
of 2006 (Adam Walsh Act), Pub. L. 109-248,
to protect children from sexual exploitation
and violent crimes, to prevent child abuse
and child pornography, to promote Internet
safety, and to honor the memory of Adam
Walsh and other child crime victims.
50
Adam Walsh Act

A petitioner on Form I-130 who has been
convicted of any “specified offence against a
minor” (a person under 18 years of age) is
prohibited from approval of the I-130 for any
family-based immigrant classification unless
the petitioner demonstrates he or she poses
no risk to safety or well-being of the
beneficiary.

INA §§ 204(a)(1)(A)(viii) and 204(a)(1)(B)(i)
51
Surviving Spouse of USC



Ordinarily, Form I-130 cannot be approved where
the petitioner is deceased. See Matter of Varela, 13
I&N Dec. 453 (BIA 1970)
Pub. L. 111-83 provides relief to surviving spouses of
USCs (enacted October 28, 2009).
If the USC petitioner dies after filing Form I-130, and
the form was pending on or after October 28, 2009,
then the form is converted to Form I-360 for
classification as a widow/ widower (IW-1).


Must not have been legally separated from USC petitioner, at
time of USC petitioner’s death and must not have remarried.
All other requirements for approval remain in force.
52
INA § 204(l): Surviving
Relative Consideration

Certain aliens who resided in the United States at the time of
the death of the qualifying relative and who continue to reside
in the United States shall have such petition adjudicated
notwithstanding the death of the qualifying relative, unless the
Secretary of Homeland Security determines, in the unreviewable
discretion of the Secretary, that approval would not be in the
public interest:


An alien who, immediately prior to the death of his or her
qualifying relative, was the beneficiary of a pending or approved
petition for classification as an immediate relative [as described in
INA § 201(b)(2)(A)(i)] OR
The beneficiary of a pending or approved petition for classification
under section INA § 203(a) or (d).
*These cases are currently being placed on hold, pending guidance
from headquarters*
53
Burden of Proof


The burden of proof always rests with the petitioner to prove
that he or she is related to the beneficiary.
—See Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966)
Examples:



If the petitioner cannot provide a copy of the record of marriage and cannot
provide documentation that the record of marriage is non-existent or
unattainable, the petitioner has not proven he or she is married.
If the petitioner states that tribal marriages are legal in his or her country
without a civil marriage certificate and cannot provide the foreign law that
permits tribal marriages, the petitioner has not proven tribal marriages are
valid in his or her country.
If the petitioner states the child is his or her biological child and cannot
provide a birth record, secondary evidence, or results from blood tests or
DNA testing, the petitioner has not proven the beneficiary is his or her
biological child.
54
Denials: Statutorily Ineligible
The Act does not grant family-based
immigrant visas to all family members. The
following family members are statutorily
ineligible under the Act and are denied:







Aunts
Uncles
Grandparents
Grandchildren
Nieces
Nephews
Cousins
55
Denials: Statutorily Ineligible
The Act provides for permanent bars on
any immigration benefit of any kind for
the following two reasons:


INA § 204(c)- an alien has committed
marriage fraud
INA § 208(d)(6)- an alien has made a
frivolous asylum application
56
Appeals & Motions




A petitioner may file a motion to reopen within 30 days of the
decision he or she seeks to reopen on Form I-290B. 8 C.F.R. §
103.5(a)(1)(i)
A petitioner may file a motion to reopen after 30 days of the
decision if he or she can prove the delay was reasonable and
beyond his or her control. 8 C.F.R. § 103.5(a)(1)(i)
A petitioner may file a motion to reconsider with 30 days of the
decision he or she seeks to reconsider on Form I-290B. 8 C.F.R.
§ 103.5(a)(1)(i)
A petitioner may file an appeal on Form EOIR-29 for any I-130
classification under INA § 203(a) to be reviewed by the Board of
Immigration Appeals (BIA). 8 C.F.R. §§ 103.3(a)(1)(ii);
1003.1(b)(5), 1003.3(a)(2)
57
THE END
THANK YOU!
58