Form I-130, Petition for Alien Relative Who Can Petition for Whom?

By Leyia Getachew, Esq.

Form I-130, Petition for Alien Relative Who Can Petition for Whom?

 

Based on the status of the petitioner, whether a U.S. citizen or Permanent Resident (Green Card holders), the Immigration and Nationality Act (INA) permits a petitioner to file for certain family members to receive a Green Card and migrate to the United States. Form I-130, Petition for Alien Relative establishes the family relationship that exists between Petitioner and Beneficiary, relative of the petitioner. Please see below the breakdown of who can petition for whom:

 

A U.S. Citizen who is at least 21 years of age may petition for the following relatives:

  1. Spouse:  A U.S. citizen may apply for his or her spouse. If the spouse is inside the U.S., the petition can be filed along with I-485, Application to Register Permanent Residence or Adjust Status to ensure the spouse receives Green Card. If the spouse is outside of the U.S., once the I-130 is approved, U.S. Citizenship and Immigration Services (USCIS) will send the petition for consular processing and the consulate or embassy will issue a visa for the spouse to migrate to the U.S. and receive Green Card. If the spouse is migrating to the U.S. with another beneficiary, for example the child of the beneficiary, a separate petition must be filed for each beneficiary. In other words, in the example above, the U.S. citizen will be filing two separate I-130, Petition for Alien Relative for his spouse and child.

 

  1. Unmarried Children under 21 years of age or older: A U.S. citizen may file for his or her unmarried children under 21 years of age or older. A “child” has a particular definition in immigration, that differs from its everyday use. For immigration purposes, a child can be any of the following:
  • A genetic child born in wedlock.
  • A genetic child born out of wedlock.
  • A child born through Assisted Reproductive Technology (ART) to a non-genetic gestational mother who is recognized under the law of the relevant jurisdiction as the child’s legal parent at the time of the child’s birth.
  • A step-child, as long as the marriage creating the step-relationship occurred before the child turned 18.
  • An adopted child if the child was adopted prior to age 16 (one exception is if siblings are adopted, as long as one was under 16, the other could be older than 16 but younger than 18), AND the adopted child has resided in the legal and physical custody of the adoptive parent for 2 years prior to filing (the legal and physical custody do not have to be the same time period, but each must be met for 2 years).

As with spouse of a U.S. citizen, if the Unmarried Child under 21 years of age or older has derivative beneficiary (child or parent), may not be included in the same I-130 petition.

  1. Unmarried sons or daughters 21 years of age or older: A U.S. citizen may file for his or her unmarried sons and daughters under 21 years of age or older. A “son and daughter” is a “child” as defined above who is married and/or over 21 years of age. This category is for unmarried sons and daughters. Unlike the above two categories, a petitioner is not required to file a separate petitioner for the unmarried sons or daughter 21 year of age’s unmarried children under 21 years of age. Instead, the children of the Unmarried sons or daughters 21 years of age or older is considered derivative beneficiary.

 

  1. Married sons or daughters of any age: As with Unmarried sons or daughters 21 years of age or older, married sons or daughters of U.S. citizens at any age may be beneficiaries of their parent’s I-130, Petition for Alien Relative. Similarly, a U.S. citizen petitioner may not need to tile separate petitions for the married sons or daughters of any age’s spouse or unmarried children under age of 21 years age. They can be included with principal beneficiary’s (Married sons or daughters of any age) petition.

 

 

  1. Brother or sister: A U.S. citizen may apply for his or her brother or sister related to her or him through both parents, half siblings, step-siblings, or adaption. Additional Documentation for siblings through adoption, step parents or paternal half-siblings. The petitioner similar to the above two categories is not required to file separate petition for the brother or sister’s spouse or unmarried children 21 year of age, they may be derivative beneficiaries. These derivative beneficiaries may be added to the petition of the brother or sister’s petition either at the time of filing or at the time of the consular processing.

 

  1. 6.      Mother or father: As a U.S. citizen, a petitioner may petition for his or her biological parents, step-parents, and adoptive parent. Before the mother or father migrates to the U.S., the petitioner is required the relationship and each of the classification listed above have their own requirements of proof. A petitioner must submit separate petition for beneficiary’s (mother or father) dependent including spouse or children.

A spouse, unmarried child under 21 years of age, and parent of U.S. citizen are considered an immediate relative. As such, unlike the other categories listed above, beneficiaries in these categories are exempt from the numerical limitations imposed on immigration to the United States enabling them to migrate without the waiting for their visa to become current.

 

A lawful permanent residence may file for the below three relative type:

  1. Spouse:
  2. Unmarried child under 21 years of age
  3. Unmarried sons and daughter 21 years or age or older

 

The definition and type of evidence required to prove the familial relationship is the same as a U.S. citizen applying for the three categories as listed in the above section. Unlike U.S. citizen petitioner’s a lawful permanent residence must file Form I-130 for each eligible relative, no relative or dependent is granted derivative status.

A petitioner may NOT file Form I-130 for the following relatives:

  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;

 

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

 

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

 

 

  1. A spouse, if petitioner and his or her spouse were not both physically present at the marriage ceremony, unless the marriage was consummated;

 

  1. A spouse, if the petitioner gained lawful permanent resident status through a prior marriage to a U.S. citizen or lawful permanent resident, unless:
    1. The petitioner is now a naturalized U.S. citizen;
    2. The petitioner has been a lawful permanent resident for at least five years;
    3. The petitioner can establish by clear and convincing evidence that her or she did not enter the prior marriage (through which petitioner gained his or her lawful permanent resident status) in order to evade any U.S. immigration law; or
    4. The petitioner prior marriage through which he or she gained his or her immigrant status was terminated by the death of the former spouse;

 

If you have any specific questions about I-130 filing for you or your relative, please login to the MyEsq portal and click “subscribe” for MemberPlus. We will call you immediately and advise you on these matters. MemberPlus is a program for all individuals and companies to have their personal immigration situations carefully reviewed, so you can plan and consult with experienced attorneys on your individual case.