Austin
Immigration Lawyer

When someone wants to directly help a family member gain legal status in the U.S., the first step is the filing of an I-130 petition.  Residency, which is the legal status that green card holders have, can only be considered and approved after an I-130 has been approved.

The approval of an I-130 petitions means that the family relationship has been established and acknowledged by USCIS.  For example, if you have petitioned a child, an approval means that USCIS has acknowledged that the person you filed for qualifies as your child under the law.  The meaning of “child” can include not only biological children, but sometimes stepchildren and adopted minors.

If you have petitioned your spouse, an approval of your I-130 petition indicates that USCIS has both acknowledged that your marriage is legal and that your relationship is genuine.

The person filing the petition must be a U.S. citizen or a lawful permanent resident (LPR).  U.S. citizens qualify to petition more types of relatives than permanent residents.

Permanent residents qualify to file I-130 petitions for:

• Spouses
• Children of any age, as long as the child is unmarried

U.S. citizens qualify to file I-130 petitions for:

• Spouses
• Children of any age, whether married or unmarried
• Parents
• Siblings

The immigrant being petitioned must apply on their own for residency in order to obtain a green card.  That residency application cannot be approved without presenting an approved I-130 petition filed by the immigrant’s LPR or U.S. citizen relative.   Once the I-130 is approved, the immigrant may be granted a green card by applying for an immigrant visa from a consulate outside the U.S. or by filing for adjustment of status in the U.S.

All immigrants must prove that they are “admissible.”  This means, for example, that those with certain types of criminal convictions in their past may not qualify or may need a waiver.  The same is true for those with past violations of immigration law.

It is important to know whether your family member will qualify to receive residency before filing an I-130 petition.  An experienced immigration attorney can advise you as to whether your loved one will ultimately be able to receive a benefit before you file the case.

The question is far more complex than many realize.  First, everyone must wait for USCIS to process the petition.  USCIS posts its current processing times on their website.  But in addition to that normal processing time, some people must wait years after filing their I-130 petition before they can actually ask for residency.  Others, who are considered “immediate relatives,” do not have to wait in a long line and their process typically moves much faster. “Immediate relatives” are spouses of U.S. citizens, unmarried children (who are under 21) of U.S. citizens, and parents of U.S. citizens age 21 or older.  Many immediate relatives already in the U.S. choose to file the I-130 petition and the residency application at the same time.

A qualified immigration attorney can help you predict how long the entire process could take and can advise you as to whether your immigrant family member can ask for residency immediately or whether they must wait until their date becomes current in the visa bulletin.  Another factor which affects the processing time is whether the immigrant will have their interview at a consulate outside the U.S. or whether they will be interviewed locally inside the U.S.  Only certain immigrants are eligible to use an approved I-130 petition to seek adjustment of status in the U.S.

A 245(i) family-based petition is simply an I-130 petition that was filed on or before April 30, 2001.  “245(i)” is simply the name of the section of law that allows certain immigrants who would not other qualify to still get their residency if they pay a $1,000 fee.

The most common examples relate to immigrants who last entered the U.S. illegally without inspection.  Most immigrants who entered without inspection do not qualify to attend their green card interview in the United States.  Instead, they must leave the U.S. and go back to their country for an interview at a U.S. consulate abroad.  But if someone has an I-130 petition that was filed on their behalf, on or before April 30, 2001, they may qualify to obtain residency and have a green card issued without ever having to leave the U.S.

Some immigrants can qualify under this law even though they weren’t directly petitioned.  For example, some immigrants were children when a U.S. citizen aunt or uncle petitioned their parent.  That immigrant child could also qualify for benefits under 245(i) through the petition filed by their aunt or uncle.  Immigrants may also qualify for 245(i) benefits if they were sponsored by an employer on or before April 30, 2001.

Typically, those who live in another country outside of the U.S. will have their residency interview in their country of citizenship.  For those immigrants already in the U.S., some qualify to apply for adjustment of status and have their green card interviews at their local USCIS office.  For others in the U.S., returning to their home country is the only option.