United States immigration law is particularly complicated. Most immigration processes have exceptions and appeals processes that can be difficult to navigate and understand. Having an I-130 denied for a criminal record can be particularly stressful due to the complexity many cases take on and the inability to file an appeal after a DHS denial. An experienced immigration lawyer will work with you to ensure that all documentation is completed correctly and submitted on time to increase your chances of obtaining approval for an immigrant visa.
The Law Office of Jason A. Davis has experience in all aspects of immigration law. We work to provide the highest quality legal services with the integrity and professionalism our clients deserve. If you have questions regarding an I-130 petition or have concerns about your eligibility to file one, contact us today to schedule an appointment.
What is USCIS Form I-130?
Form I-130, Petition for Alien Relative, is used to establish that a family relationship between a U.S. citizen or green card holder and a person seeking permanent resident status is valid. You will often see it referred to as the I-130 petition. Filing this petition with U.S. Citizenship and Immigration Services (USCIS), a subset of the U.S. Department of Homeland Security (DHS), is the first step in the issuance of a family-based green card.
For a marriage visa application, the I-130 petition will be used to prove the legal validity of the marriage based on a legitimate marriage certificate. At this stage in the process you will also submit your documentation to prove the authenticity of the marriage, usually documents such as joint bank statements, insurance documents, or photos.
By filing the I-130 petition you also claim your place in line for when a green card is made available. While the immigrant spouse, parent, or minor child (under the age of 21) are permitted to skip the line in green card proceedings, everyone else is sorted by priority date. This is the date on which USCIS received the I-130 petition you filed. These petitions are usually processed in the same order in which they are filed. You can find the current wait time for different green card categories on the visa bulletin.
Processing Times for Form I-130
The length of time it will take to process your I-130 petition will depend on the nature of your family relationship and on the USCIS field office that is handling your case. Immediate relatives (parent, minor child, or spouse) of a legal green card holder will typically wait for a period of time between 13.5 and 19 months. For immediate relatives of a U.S. citizen, the processing time of an I-130 petition will usually range between 15 and 20 months. Family preference visas for family members such as siblings can vary wildly, ranging between 13.5 months to potentially over 20 years.
With these figures in mind, it should be clear that starting your I-130 petition as soon as possible is in your best interest. You should also keep in mind that mistakes made on filed paperwork are some of the most frequent causes of immigration delays. Hiring an experienced immigration attorney can help you avoid these issues and others to make your family-based immigration process as simple and easy as possible.
Contact us for a case review to find out how we can help you!
Who Can File a Form I-130?
Both U.S. citizens and legal permanent residents of the United States are permitted to file an I-130 petition. The allowances for who that petition may cover, however, differ slightly.
- A U.S. citizen may file I-130 petitions for their spouse, children, parents, and siblings.
- A current green card holder may file I-130 petitions for their spouse and unmarried children.
The citizen or green card holder who files the I-130 petition is referred to as the petitioner or the sponsor. The individual looking to obtain a green card is known as the beneficiary.
Who Cannot be Sponsored Under a Form I-130?
An existing family relationship does not guarantee that you will be permitted to file an I-130 petition for an individual. The following relatives will be excluded for eligibility as a beneficiary for an I-130 petition:
- Grandparents, grandchildren, nieces, nephews, uncles, aunts, cousins, or parents-in-law
- Adoptive parents or adopted children as long as the child was adopted after they turned 16 years old
- Stepparents or stepchildren if the marriage establishing the family relationship took place after the child turned 18 years old
- Spouses, if both were not present physically at the marriage ceremony
- Spouses, if the marriage took place while the foreign-citizen spouse was involved in an immigration court proceeding (e.g. a deportation case)
- Any relative that USCIS has determined married or attempted to marry for the purposes of attaining a legal immigration status
These exclusions may have some exceptions in immigration law. It may be possible to file an I-130 petition for one of the relatives listed above with additional supporting documentation. If you are hoping to file a Form I-130 for a relative on this list you should look for legal advice from an immigration law attorney. They will be able to help you navigate the process and help you make the right decisions throughout.
What Crimes Will Make You Ineligible to File an I-130?
A U.S. citizen or lawful permanent resident looking to sponsor an immigration petition receives relatively little scrutiny on their character. If you have been convicted of crimes such as assault, theft, or drug trafficking, you will likely not face issues with filing a petition for a family member, provided you have served your sentence and are not actively wanted by law enforcement.
This is particularly true for those wishing to sponsor a foreign spouse for a marriage-based green card. For the most part, the immigration application process will focus on the legitimacy of the relationship to rule out a fraudulent marriage and the potential immigrant’s general admissibility into the United States.
The exception to this would be convictions for crimes that fall under the umbrella of the Adam-Walsh Child Protection and Safety Act of 2006. United States citizens and lawful permanent residents who have criminal convictions for offenses under the Adam Walsh Act will not be permitted to petition for family members to receive a green card.
USCIS will run a criminal background check on application petitioners to discover whether the FBI, a related agency or any sex offender registries have a record of any such crimes. Should one of the crimes found under the Adam Walsh Act turn up in the criminal background check process, the potential beneficiary will likely be unable to immigrate through the existing marriage.
What Crimes are Covered by the Adam Walsh Act?
The Adam Walsh Act covers crimes committed against minors (children under the age of 18). The majority of the crimes under the umbrella of the Adam Walsh Act are child abuse of a violent or sexual nature. These criminal offenses include:
- An offense involving kidnapping, unless committed by a parent or guardian
- An offense involving false imprisonment unless committed by a parent or guardian
- Solicitation of sexual conduct
- Use of a minor in a sexual performance
- Solicitation to practice prostitution
- Video voyeurism
- Possession, production, or distribution of child pornography
- Criminal sexual conduct involving a minor, or use of the Internet to facilitate or attempt such conduct
- Any conduct that by its nature is a sex offense against a minor
The Adam Walsh Act will also cover a foreign conviction for equivalent crimes unless the defendant was not given a fair trial under their legal system.
Any potential petitioners with a criminal record that includes something that may be covered under the Adam Walsh Act should meet with an immigration attorney prior to filing a petition for an immigrant visa for a family member. Doing so will afford you the opportunity to plan ahead and work around the potential roadblocks you may face.
Contact us today to review your options and begin building a strategy for the immigration process.
Exceptions for U.S. Petitioners Who Are Not a Threat to the Immigrant
An exception to criminal disqualification exists for situations in which the Department of Homeland Security concludes that the U.S. citizen or permanent resident filing the immigrant visa petition does not pose a risk to the prospective beneficiary. It is the responsibility of the petitioner to ask for and also to prove that they pose no risk beyond a reasonable doubt. This is the highest burden of proof in the United States legal system, and it can be difficult to achieve in these instances.
In order to secure an exception for DHS, the petitioner will need to offer documented, reliable evidence to support their case. This additional evidence, preferably in the form of signed affidavits and/or certified copies, should show what happened in the case in question as well as what steps the petitioner has undertaken in terms of rehabilitation. Examples of evidence that could be used to successfully apply for the exemption include:
- Court documents and police reports from the case and relating to the offense
- Transcripts from a trial and news reports covering the nature and circumstances covering the petitioner’s criminal, violent, or abusive behavior arrests and convictions
- Evidence of the petitioner’s successful completion of a rehabilitation program
- Evidence of the petitioner’s successful completion of a therapy or counseling course
- Evaluation results from a clinical psychologist, clinical social worker, licensed psychiatrist or other professional providing a description of the petitioner’s rehabilitation or modification of behavior
- Evidence of community service having been performed by the petitioner
- Certified evidence of the petitioner’s service in the United States Armed Forces, Coast Guard, or public health service
The I-130 petition may only move forward if the DHS concludes that the petitioner poses no risk to the beneficiary. Should they decide otherwise the immigrant visa application will be closed and there will be no appeal process to overturn the DHS’s decision.
The best thing you could do when proceeding with the DHS exemption petition is to acquire the services of a talented, knowledgeable, and experienced immigration attorney. They will guide you through the process and help you make sure all the immigration forms and additional documents you need to submit are done quickly, above all else, correctly. The inability to appeal the decision at this stage makes it a zero-sum game.
They may even find a better way to bring your foreign family member to the United States, such as finding another sponsor for their visa application. Contact us today for legal counsel to ensure that the whole process, from start to finish, is handled quickly and in a way that offers you the best chance at securing lawful immigration status and immigration benefits for your family.
Contact an Immigration Lawyer For Help With Your I-30
If you have a criminal history and are intending to sponsor a foreign family member for permanent resident status in the United States you should hire an experienced immigration attorney to assist you. While many past convictions will be irrelevant to the immigration process, those that do cause the application to be flagged can be incredibly difficult to overcome.
Furthermore, requesting and arguing for an exemption from the DHS has a high barrier of proof that must be met and has no opportunity for an appeal should you be denied. Hire an experienced immigration attorney to answer any of your legal questions, help you get all of your paperwork in order, and offer advice on how to best proceed with your case.
At The Law Office of Jason A. Davis, we have experience helping our clients handle immigration problems both simple and complex. We strive to provide the highest quality legal service available to our clients while maintaining professionalism and integrity in all of our cases. If you are planning to file an I-130 petition, and particularly if you have a criminal record, contact an immigration attorney in NY to review your options. Contact us today through our website or over the phone to schedule an appointment!