I-130 family petitions
I-130 Family Petition Lawyer — a Former Immigration Judge for U.S. Citizens and Residents Petitioning for Family
Form I-130, Petition for Alien Relative, is how a U.S. citizen or permanent resident asks the government to recognize a family relationship so a relative can immigrate. It is the first step, not the green card: it sets the category and the place in line, and can follow a family for years. Carlos Maury, a former U.S. Immigration Judge who heard cases at the Van Nuys Immigration Court, and before that served as government immigration counsel, prepares and defends I-130 petitions for spouses, children, parents and siblings, at USCIS, on appeal and in immigration court, in English and Spanish.
Carlos Maury is no longer on the bench and cannot influence any sitting judge or pending case.
Why a former immigration judge
I-130 petitions are decided by USCIS officers, not judges. But a relative in removal proceedings may depend on an I-130 to ask the judge for a green card, and a denied petition goes on appeal to the Board of Immigration Appeals, the same Board that reviews immigration judges. A Department of Homeland Security (DHS) attorney may oppose the case.
Carlos Maury served as a U.S. Immigration Judge at the Van Nuys Immigration Court, appointed by Attorney General Eric Holder, hearing cases from June 2015. As a judge, he decided roughly six hundred asylum cases on their merits in recent years (TRAC judge report (opens in new tab)). From 2002 to 2015 he worked with U.S. Immigration and Customs Enforcement (ICE) in Los Angeles, rising to deputy chief counsel, the side of the courtroom that reviews the government's file and takes a position on relief.
That experience shapes how we prepare a family petition: we read the relationship evidence the way the officer and the Board will, look at the whole immigration history of both the petitioner and the relative before anything is filed, and plan for what comes after approval. None of this can promise a particular outcome; every case turns on its own facts and the law.
What we handle
We handle the petition and the problems that grow out of it. Our guide to marriage and family green cards explains the wider law.
- Petitions in every family category, with the proof of the relationship.
- Requests for evidence and notices of intent to deny.
- Denials and revocations, including appeals. See our immigration appeals lawyer page.
- Category changes and the death of a petitioner.
- Petitions in removal proceedings. See our deportation defense lawyer page.
- The green card that follows. See our green card lawyer and marriage green card lawyer pages; for a fiancé(e) abroad, our K-1 fiancé visa lawyer page.
Who can file an I-130, and for whom
The petitioner, a U.S. citizen or permanent resident, files the I-130 for the relative, called the beneficiary (8 C.F.R. § 204.1 (opens in new tab); USCIS Form I-130 page (opens in new tab)). Each beneficiary generally needs a separate petition.
- A U.S. citizen can petition for a spouse, a child or son or daughter of any age, married or not, and, if the citizen is at least 21, a parent or a brother or sister.
- A permanent resident can petition only for a spouse and unmarried children, under or over 21.
No one can file an I-130 for a grandparent, aunt, uncle, cousin, niece or nephew. Step relationships count only if the marriage that created them took place before the child turned 18 (8 C.F.R. § 204.2 (opens in new tab)).
Immediate relatives and the preference categories
The spouses, unmarried children under 21 and parents of U.S. citizens (parents only if the citizen is at least 21) are immediate relatives (INA § 201(b)(2)(A)(i) (opens in new tab)). Their visas have no annual limit, so a visa is available once the petition is approved. Everyone else waits under the annual limits of INA § 203(a) (opens in new tab):
- F1. Unmarried sons and daughters, 21 or older, of U.S. citizens.
- F2A. Spouses and unmarried children under 21 of permanent residents.
- F2B. Unmarried sons and daughters, 21 or older, of permanent residents.
- F3. Married sons and daughters of U.S. citizens.
- F4. Brothers and sisters of adult U.S. citizens.
In the preference categories, the beneficiary's spouse and unmarried children under 21 can usually come as derivatives. Immediate relatives have no derivatives, so each child who also qualifies needs a separate I-130.
Priority dates and the Visa Bulletin
In the preference categories, the date USCIS receives a properly filed I-130 is the priority date, the beneficiary's place in line. Each month the State Department's Visa Bulletin (opens in new tab) shows the cut-off dates by category and country of chargeability, usually the country of birth, in two charts: final action dates and dates for filing. See how to read the Visa Bulletin.
Proving the relationship
The petitioner proves their own citizenship or permanent residence, with a U.S. birth certificate, passport, naturalization or citizenship certificate, consular report of birth abroad or green card (8 C.F.R. § 204.1(g)), and then the relationship, usually with civil records: a marriage certificate and proof that every earlier marriage ended; a birth certificate naming the parent; for siblings, both birth certificates showing a common parent. A father of a child born outside marriage, a stepparent and an adoptive parent need added proof. Proof that a marriage is real is on our marriage green card lawyer page.
When a record does not exist or cannot be obtained, the petitioner must show that and submit secondary evidence, such as church or school records, and failing that, two or more affidavits from people with direct personal knowledge (8 C.F.R. § 103.2(b)(2) (opens in new tab)). USCIS may ask for blood or genetic testing when the evidence of parentage is inconclusive.
After filing: the I-485 or the consulate
The I-130 is filed with U.S. Citizenship and Immigration Services. A citizen living abroad may, in limited circumstances, file for an immediate relative at a U.S. embassy or consulate (USCIS Policy Manual, Vol. 6, Part B, ch. 3 (opens in new tab)).
- Concurrent filing. A relative in the United States who is eligible to adjust, with a visa immediately available, can file Form I-485 with the I-130 (USCIS Policy Manual, Vol. 7, Part A, ch. 3 (opens in new tab)): usually at once for an immediate relative, and only with a current priority date otherwise. See adjustment of status.
- Consular processing. For a relative abroad, the approved petition goes to the National Visa Center, then the embassy interview. See consular processing.
- The affidavit of support. The petitioner signs Form I-864, a binding promise of support under INA § 213A (opens in new tab), even if a joint sponsor is also needed. See our green card lawyer page.
What an approved I-130 does, and does not do
USCIS says it plainly: filing or approval of the petition does not give the relative any immigration status or benefit. It is not a green card, a work permit or protection from removal. It establishes the relationship and, in a preference category, holds the priority date.
The relative must still qualify for the green card. One who entered without inspection generally cannot adjust in the United States unless a petition or labor certification filed on or before April 30, 2001 preserves eligibility under INA § 245(i) (opens in new tab). Leaving for a consular interview after more than 180 days of unlawful presence can trigger a three-year bar, and after a year or more a ten-year bar (INA § 212(a)(9)(B) (opens in new tab)). Some bars can be waived; see our immigration waiver lawyer page before anyone travels.
When life changes the category
Approval lasts as long as the relationship and the petitioner's status (8 C.F.R. § 204.2(h)), but many changes convert the category instead of ending the case (8 C.F.R. § 204.2(i)):
- A citizen's child marries. The petition converts to F3, keeping the priority date.
- A citizen's married son or daughter divorces. F3 converts to F1, or to immediate relative if under 21.
- A citizen's child turns 21. The child generally stays an immediate relative if under 21 when the I-130 was filed (INA § 201(f) (opens in new tab)).
- A resident petitioner naturalizes. F2A petitions become immediate-relative petitions; F2B converts to F1 unless the son or daughter elects in writing to stay in F2B (INA § 204(k) (opens in new tab)).
- A resident's son or daughter marries. The petition is revoked; no category exists for that relationship.
For F2A and derivative children, the Child Status Protection Act subtracts the time the petition was pending from the child's age when a visa becomes available, if the child seeks permanent residence within one year (INA § 203(h)).
Bars that stop a petition
- Prior marriage fraud. Under INA § 204(c), no petition can be approved for a person who previously entered, or attempted or conspired to enter, a marriage to evade the immigration laws, even without a prosecution, on substantial and probative evidence in the file (8 C.F.R. § 204.2(a)(1)(ii)). It blocks later petitions by any relative.
- Offenses against a minor. Under the Adam Walsh Child Protection and Safety Act, a petitioner convicted of a specified offense against a minor generally cannot petition unless DHS decides, in its sole and unreviewable discretion, that the petitioner poses no risk to the beneficiary (INA § 204(a)(1)(A)(viii)).
- A resident's new marriage. A resident who got a green card through an earlier marriage and petitions for a new spouse within five years generally must prove by clear and convincing evidence that the earlier marriage was not entered to evade the immigration laws (8 C.F.R. § 204.2(a)(1)(i)).
Requests for evidence, denials and appeals
USCIS may deny a petition missing initial evidence outright, or issue a request for evidence or a notice of intent to deny (8 C.F.R. § 103.2(b)(8)). A denial based on derogatory information the petitioner does not know about must be preceded by a chance to rebut it (8 C.F.R. § 103.2(b)(16)(i)).
A denied family petition is appealed to the Board of Immigration Appeals (8 C.F.R. § 1003.1(b)(5) (opens in new tab)) on Form EOIR-29, filed with the USCIS office that decided it within 30 days of service (8 C.F.R. § 1003.3(a)(2) (opens in new tab)). A motion to reopen or reconsider with USCIS generally has a 30-day limit (8 C.F.R. § 103.5 (opens in new tab)).
DHS may also revoke an approved petition for good and sufficient cause (INA § 205 (opens in new tab)), a decision the Board can review. Some events revoke it automatically, including the petitioner's written withdrawal, the beneficiary's death and a divorce ending a spousal petition (8 C.F.R. § 205.1 (opens in new tab)).
If the petitioner dies
The petitioner's death automatically revokes an approved petition, with exceptions (8 C.F.R. § 205.1(a)(3)(i)(C)). A citizen's petition for a spouse may be treated as the widow or widower's own petition. USCIS may also grant humanitarian reinstatement if the principal beneficiary asks and a qualifying relative will file an affidavit of support as a substitute sponsor. Separately, INA § 204(l) lets a beneficiary of a pending or approved petition who lived in the United States when the petitioner died, and still does, have the case decided anyway, unless DHS finds approval would not be in the public interest.
An I-130 in immigration court
An immigration judge cannot decide an I-130; only USCIS can. When a relative in removal proceedings depends on a pending petition, the judge decides whether to wait. In Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009), the Board listed the factors for a continuance, including the DHS response, whether the petition appears approvable, whether the person appears eligible to adjust and the procedural history. Where the rules allow, the judge may instead take the case off the active calendar while USCIS decides. See our removal defense guide and our green card lawyer page for adjustment before the judge.
Filing puts the relative's history before the government, so review any removal order or record first. A resident close to naturalizing should see our citizenship lawyer page.
Mistakes that can hurt a family petition
- Treating approval as status. It gives no right to stay or work.
- The wrong category. A married son or daughter listed as unmarried invites a misrepresentation finding.
- Leaving out prior marriages or petitions. They are in the government's records.
- Missing the age-out math. It depends on exact dates.
- Traveling before checking unlawful presence. Leaving can trigger a bar.
- Letting a notario handle it. A "notario" is not a lawyer and cannot represent you before USCIS or in immigration court.
Serving Los Angeles & Southern California
Our office is in Van Nuys, in the San Fernando Valley, and we regularly handle family petitions before the USCIS offices that serve Los Angeles and Southern California, with U.S. consulates abroad, and in the immigration courts of the region:
- Los Angeles immigration court
- West LA immigration court
- Van Nuys immigration court
- Santa Ana immigration court
- Adelanto immigration court (detained cases)
- San Diego immigration court
- Otay Mesa immigration court (detained cases)
- Imperial immigration court
See all Los Angeles-area immigration courts.
Our page on the Southern California immigration courts covers all eight court locations, including the border courts in San Diego, Otay Mesa and Imperial.
Immigration law is federal, so we represent clients across the country, before USCIS, U.S. consulates and the immigration courts. We appear in immigration courts in all 50 states, in person or by video where the court allows. Find your court among all 77 immigration courts. Meetings at the Van Nuys office are by appointment only.
Carlos Maury is licensed in Florida. Practice limited to federal immigration law; we represent clients in all 50 states.
About Carlos Maury
Carlos Maury served as a U.S. Immigration Judge at the Van Nuys Immigration Court, appointed by Attorney General Eric Holder, hearing cases from June 2015 (EOIR announcement (opens in new tab)). From 2002 to 2015 he worked with U.S. Immigration and Customs Enforcement in Los Angeles, rising to deputy chief counsel. Before that he was district counsel for the former Immigration and Naturalization Service in Miami from 2000 to 2002, and an assistant public defender in Florida's Eleventh Judicial Circuit from 1993 to 2000.
He earned his J.D. from the University of Miami School of Law in 1992 and his B.A. from City College of the City University of New York in 1989. He is a member of The Florida Bar (No. 964239) and works with clients in English and Spanish. Read more about Carlos Maury.
Frequently asked questions
Who can file Form I-130?
A U.S. citizen can file for a spouse, a child or son or daughter of any age, and, if at least 21, a parent or a brother or sister. A permanent resident can file only for a spouse and unmarried children.
What is the difference between an immediate relative and a preference category?
Immediate relatives, the spouses, unmarried children under 21 and parents of U.S. citizens, have no annual visa limit. Other relatives fall into the F1, F2A, F2B, F3 or F4 categories and wait for their priority date to become current in the Visa Bulletin.
Does an approved I-130 give my relative a green card or a work permit?
No. Filing or approval of the petition does not give the relative any immigration status or benefit. The relative must still apply for the green card in the United States or through a consulate, and must qualify when that time comes.
Can my relative file for a green card at the same time as the I-130?
Sometimes. A relative in the United States who is eligible to adjust status, with a visa immediately available, can file Form I-485 with the I-130. That is usually possible for immediate relatives, and otherwise only when the priority date is current.
What happens to the petition if my child turns 21 or gets married?
A citizen's child under 21 when the petition was filed generally stays an immediate relative after turning 21, and one who marries moves to F3, keeping the priority date. A permanent resident's son or daughter who marries loses the petition. The Child Status Protection Act may protect some children from aging out.
What if the person who filed the petition dies?
The approval is generally revoked, but a citizen's spouse may continue as a widow or widower, USCIS may grant humanitarian reinstatement with a substitute sponsor, and section 204(l) may help a relative who lived in the United States at the time of death.
Can I appeal if USCIS denies my I-130?
Yes. A denied family petition is appealed to the Board of Immigration Appeals on Form EOIR-29, filed with the USCIS office that decided it within 30 days of service. A motion or a new petition may also be options.
Can an immigration judge approve my I-130?
No. Only USCIS decides the petition. If you are in removal proceedings and depend on a pending I-130, the judge decides whether to continue your case or take it off the active calendar while USCIS decides.
Do you handle I-130 family petitions in Los Angeles and Southern California?
Yes, before the USCIS offices that serve Los Angeles and Southern California, with U.S. consulates abroad, and in the immigration courts in Los Angeles, Van Nuys, West LA, Santa Ana, Adelanto, San Diego, Otay Mesa and Imperial. Meetings at our Van Nuys office are by appointment only.
Can Carlos Maury influence the officer or judge deciding my case?
No. Carlos Maury is no longer on the bench and cannot influence any sitting judge or pending case. What he offers is preparation and experience, not access.
Talk with a former immigration judge about your family petition
Whether you are about to file for a spouse, a child, a parent or a sibling, have received a request for evidence or a denial, are watching a child approach 21, or face removal proceedings while a petition is pending, call to discuss your case. Hablamos español.