An I-130 visa petition is designed specifically for U.S. citizens or lawful permanent residents (Greencard holders) who wish to petition close family members.
Who Can Be Petitioned?
If you are an American citizen adult you can petition your spouse, parent, child under 21, single adult son or daughter, married son or daughter, or your brother or sister.
If you are a lawful permanent resident of the U.S. you can petition your spouse, child under 21, or unmarried son or daughter. You may not petition your parent, married son or daughter or your brother or sister.
The most common purpose of an I-130 petition is to immigrate a spouse. The I-130 petition is the first step to bring a spouse to the United States as an immigrant. If the spouse is already in the U.S., the I-130 petition is required before the spouse can adjust status to lawful permanent resident in the U.S.
Documents required to petition a spouse:
If you wish to immigrate a spouse, you must submit documents to prove your marital relationship. This means you must include with the petition, your marriage certificate, evidence proving the termination of any prior marriages through divorce or death, proof of your citizenship or lawful permanent resident status, the birth certificate of your spouse, and a passport photo for you the petitioner and one for your spouse.
An I-130 petition can also be used to petition other family members. Again, you must include with the petition proof of the relationship to your relative that you are petitioning. For a child, you must include the birth certificate of your child, and your marriage certificate to the child’s mother if you are the father or step-father. If you are the child’s mother you must include the child’s birth certificate proving your relationship. A petition for a parent must include your birth certificate, your marriage certificate if you are a woman and your name is different than on your birth certificate, your parent’s birth certificate, and proof of your U.S. citizenship. A petition for a sibling must include your birth certificate and the birth certificate of your sibling.
You may petition adopted children provided they were legally adopted before they turned 16 years of age, regardless of how old they are now. Also you must prove that you have at least two years of legal custody of the child as well as two year of physical custody of the adopted child. This means that any court order granting you custody must be at least two years old and you must have physically lived with the child in the same household for two years before you can file the I-130 petition. Foreign adoptions are permitted provided they comply with the law of the foreign country.
Remember filing an I-130 petition alone will not, by itself, automatically result in the granting of permanent residence to your relative. If your relative is in the U.S., you must also file an application for adjustment of status, (Form I-485) along with a form G-325, and affidavit of support. Many petitions have lengthy waiting times called Quotas which means that delays between filing a petition and obtaining permanent residence can be lengthy. Check the Visa Bulletin on the U.S. Department of State website at www.travel.state.gov/visa/bulletin to determine waiting times. Spouses of U.S. citizens, parents of U.S. citizens, and minor children of U.S. citizens have no quota.
Same Sex Marriages
The U.S. immigration system applies the definition used in the Defense of Marriage Act (DOMA) to define marriages for immigration purposes. Therefore, spouses in same-sex relationships do not qualify for a US immigrant visa through marriage at the present time. Hopefully, immigration reform could bring changes in this area. However, the USCIS does in general permit the immigration of spouses where one spouse has undergone a sex change and is considered transgendered.
The family visa attorneys at the Law Office of David M. Sturman have filed numerous I-130 petitions for our clients and we are very knowledgeable in this area. Feel free to contact us for a FREE consultation by email, phone or in person.