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Petitioner can file Multiple I-130s
Last Updated on September 21, 2023 by JR
How Many I-130 Petitions?
The Board of Immigration Appeals answered this question by saying “at least 3” I-130 petitions for a marriage green card case.
In the case, a United States citizen petitioner applied for immediate relative status for the beneficiary as his spouse under section 201(b) of the Immigration and Nationality Act, 8 U.S.C. § 1151(b).
In a decision dated February 1, 2008, the Field Office director (“Director”) of the U.S. Citizenship and Immigration Services (“USCIS”) denied the beneficiary the immigration benefit sought. The petitioner appealed from the Director’s denial of the visa petition.
The parties were married on July 27, 2002. The petitioner filed a Form I-130 on December 4, 2002, but withdrew it on November 4, 2003. On that same date, an “Acknowledgment of Withdrawal” was issued by the Interim District Director, indicating that the petitioner admitted his marriage to the beneficiary was in order to help her obtain immigration benefits.
The petitioner signed the “Acknowledgment” as having received it on the issuance date of November 4, 2003.
On December 29, 2003, the petitioner filed a second Form I-130, which was denied on July 22, 2006. In the Notice of Denial, the Acting District Director noted an audio-visually recorded statement by the petitioner dated November 4, 2003, during which the petitioner admitted having married the beneficiary in order to receive immigration benefits. The petitioner did not appeal the denial.
On November 24, 2006, the petitioner filed a third Form I-130 attaching a statement from the petitioner and numerous supporting documents. The petitioner maintained in his statement that he withdrew the first Form I-130 and lied that his marriage was not bona fide because at that time he was angry at the beneficiary due to his suspicions she was cheating on him.
An interview was scheduled on October 4, 2007, but after the parties failed to appear, the Director denied the petition on October 15, 2007. However, proceedings were reopened on December 31, 2007, after the Director determined that the petitioner had requested on October 1, 2007, that the interview be rescheduled due to the petitioner’s hospitalization at that time.
On February 1, 2008, the Director denied the petition, finding that the petitioner had failed to provide clear and convincing evidence that his marriage to the beneficiary was not entered into for the purpose of evading immigration laws. The Director took issue with the fact that the petitioner had not appealed the denial of the second Form I-130, finding that “this clearly demonstrates an attempt to circumvent the Board.”
The Board of Immigration Appeals reversed the Director. According to the Board:
The petitioner is entitled to de novo consideration for each petition filed. See Matter of Tawfik, 20 I&N Dec. 166, 168 (BIA 1990); Matter of F-, 9 I&N Dec. 684 (BIA 1962). The denial of a previous petition is without prejudice to the filing of a new petition. See 8 C.F.R. § 204.2(a)(1)(iii)(D). Consequently, the Board found that it was improper for the Director to deny the petition, at least in part, on the basis that the previous petition had been denied and not appealed.
The Board stated that the petitioner here has a “heavy burden” to establish the bona fides of the relationship. Matter of Laureano, 19 I&N Dec. 1 (BIA 1983). However, the Director failed to acknowledge and analyze the explanation submitted by the petitioner for withdrawing his first Form I–130.
The Board remanded (sent back) the case for a new decision. Giving the opportunity to supplement the record with evidence supporting the bona fides of the marriage.
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