I-130 Petition for Alien Relative Denied on a Technicality? File Again!
Many applicants, especially those who file without an attorney, have their I-130 Petition for Alien Relative denied on a technicality. Often the denial is due to issues that can be rectified.
What applicants may not know is that they can file another I-130 for the same beneficiary, after correcting the technical error.
If USCIS made the mistake, you can generally file to have the decision reconsidered, or you can appeal the decision. You can also submit a "motion to reopen" to add additional evidence to your petition - but you can only add evidence that existed at the time that you originally applied.
What if the technical error was your fault? Let's say you are a U.S. citizen who filed an I-130 Petition based on your marriage to a non-citizen. You were married previously, but USCIS found that you did not submit appropriate evidence to prove that you were legally divorced from your first spouse. USCIS could consider that first marriage still intact, and your second marriage invalid.
This is your mistake - you will probably need to go back to family court to finalize the divorce and (to be safe) marry your non-citizen spouse again. This is new evidence, so you can't ask USCIS to reopen your case based on this. You can, however, file a new I-130 after you have fixed the technical mistake.
It is important to make sure your petition was denied on this technical basis - not because USCIS did not believe you are in a real relationship. It is also important to have a lawyer look at your denial to make this determination and to make sure that you fix the problem correctly. Finally, it is important to have an attorney for the new application, as USCIS looks very carefully at cases that have been previously denied. You will also need an attorney's assistance if an appeal or motion is the best plan for you.
For more information about appeals, motions to reconsider and motions to reopen go to:
http://www.uscis.gov/forms/questions-and-answers-appeals-and-motions
To find out your best option after a USCIS denial, contact us at TheTeam@Huwelaw.com