I-130 Petition Approved in US, but Now Residing Abroad

[ws1889 19]

Hi Everyone,

 

Thank you for reading about my situation and offering help. I am a US Citizen and my wife is not. While we were living in the US, we were approved for an I-130 petition in July 2017. We submitted the I-485 then after, but it was rejected in November 2017 due to us mistakenly using an outdated form.

 

While we were living in the United States, my wife was on a tourist visa which she overstayed; now, she is subject to a 10-year ban (I know the I-601 will be necessary). We left the US unaware of this situation and are now permanent residents in a country in which neither of us are from.

 

This summer, my wife had another I-130 petition approved. This petition was submitted by her mom who is a LPR, however it was submitted 5 years ago before we were married, and for the interview my wife is requested to visit the US embassy in her home country.

 

My questions are as follows:

1. Because our I-130 request has already been approved (in July 2017), is it possible to have a consular interview in the country we are currently residing in? Do I-130 approvals expire? Our successful petition still shows in the USCIS system as approved, but when I called the NVC they had no record of it (I emailed their research team about this but haven't heard back).

 

2. How do I know if my I-130 is still valid? Does it affect things that I filed it from within the US, and we are now abroad? When I received the approval, all it said to do was to submit an I-485, but this is only valid if we are in the US. Will we have to submit another I-130 if the previous one is no longer valid?

 

3. Worst case scenario, is it possible to proceed with the approved I-130 my wife's mom submitted and to get the application moving forward this way?

 

I know this process will take a while, especially with the I-601, so we are looking for what may be the quickest process. Thank you again for reading :)

[ADW & JOP 146]

I am not sure how to answer all your other questions, but I was under the impression that your wife is no longer eligible for your mother-in-law's petition as she is now married to you and your mother-in-law is an LPR.

 

https://www.visajourney.com/content/child/

Edited August 17, 2019 by ADW & JOP

[ws1889 19]

6 minutes ago, ADW & JOP said:

I am not sure how to answer all your other questions, but I was under the impression that your wife is no longer eligible for your mother-in-law's petition as she is now married to you and your mother-in-law is an LPR.

 

https://www.visajourney.com/content/child/

Thank you for your comment. I was unaware of this rule, but it is very good to know.

[geowrian 22,335]

Correct - An LPR can only petition for an unmarried child/son/daughter (F2A/F2B category). There is no category for a married child/son/daughter, so the petition became invalid the moment she got married...they may not have just realized it yet.

1. You can complete consular processing so long as you have legal residence or citizenship in the country.
   1. An I-130 does not expire, but eventually it will be sent to the NRC then eventually destroyed in compliance with retention requirements.
   2. I'm assuming the I-130 was either completed and marked as intending to do AOS within the US instead of consular processing abroad. Or USCIS incorrectly thought so. As such, they still hold the petition. An I-824 can be filed to get them to send it to NVC.
2. An I-485 no longer applies. it sounds like you did choose to do AOS instead of consular processing when you filed the I-130. Anyway, see #1 for next steps.
3. No - see comments above.

[HRQX 4,145]

21 minutes ago, geowrian said:

You can complete consular processing so long as you have legal residence or citizenship in the country.

1. An I-130 does not expire, but eventually it will be sent to the NRC then eventually destroyed in compliance with retention requirements.
2. I'm assuming the I-130 was either completed and marked as intending to do AOS within the US instead of consular processing abroad. Or USCIS incorrectly thought so. As such, they still hold the petition. An I-824 can be filed to get them to send it to NVC.

They'll address the INA § 212(a)(9)(B) inadmissibility later?

[ws1889 19]

34 minutes ago, geowrian said:

Correct - An LPR can only petition for an unmarried child/son/daughter (F2A/F2B category). There is no category for a married child/son/daughter, so the petition became invalid the moment she got married...they may not have just realized it yet.

1. You can complete consular processing so long as you have legal residence or citizenship in the country.
   1. An I-130 does not expire, but eventually it will be sent to the NRC then eventually destroyed in compliance with retention requirements.
   2. I'm assuming the I-130 was either completed and marked as intending to do AOS within the US instead of consular processing abroad. Or USCIS incorrectly thought so. As such, they still hold the petition. An I-824 can be filed to get them to send it to NVC.
2. An I-485 no longer applies. it sounds like you did choose to do AOS instead of consular processing when you filed the I-130. Anyway, see #1 for next steps.
3. No - see comments above.

Is the I-824 the only way to have the USCIS forward the petition to the NVC? I looked it up and the form is quite expensive, and the processing time is quite long. I sent the NVC research department a copy of the accepted petition; would this be enough, and then they verify with USCIS?

[ws1889 19]

8 minutes ago, HRQX said:

They'll address the INA § 212(a)(9)(B) inadmissibility later?

Yes, that's my understanding. The consular officer will deny the application and then I will file I-601.

[geowrian 22,335]

20 minutes ago, HRQX said:

They'll address the INA § 212(a)(9)(B) inadmissibility later?

Yes. The inadmissibility will be addressed once found to be otherwise eligible for the visa (after the interview). If a waiver is available (it will be, assuming that's the only inadmissibility), they will be able to apply for it at that time.

 

12 minutes ago, ws1889 said:

Is the I-824 the only way to have the USCIS forward the petition to the NVC? I looked it up and the form is quite expensive, and the processing time is quite long. I sent the NVC research department a copy of the accepted petition; would this be enough, and then they verify with USCIS?

You can contact USCIS directly and request it....I have heard of a few cases where this has happened, but none from that long ago that was actually marked as doing AOS. NVC has no authority to get the I-130 unless USCIS releases it to them...the I-130 is adjudicated by USCIS (part of DHS) and NVC is under DOS instead. DOS won't touch anything with petitions unless USCIS has authorized them to do so.

Edited August 17, 2019 by geowrian

[HRQX 4,145]

53 minutes ago, geowrian said:

An I-130 does not expire, but eventually it will be sent to the NRC then eventually destroyed in compliance with retention requirements.

How long does NRC typically hold it before destroying it?

[geowrian 22,335]

1 minute ago, HRQX said:

How long does NRC typically hold it before destroying it?

First let me make a correction...I'm not sure if NRC handles cases with USCIS or not. I was thinking NVC as I typed it....so my apologies there.

 

I'd have to look up retention policies. I swear I saw them recently only hold it for 1 year (after NVC had it for 1 year with no progress) before destruction.

[HRQX 4,145]

16 minutes ago, geowrian said:

I'd have to look up retention policies.

Or an alternate option is to submit a new spousal I-130 petition.

[geowrian 22,335]

Just now, HRQX said:

Or an alternate option is to submit a new spousal I-130 petition.

Yup. An I-824 is usually slightly faster, but if the I-130's existence is uncertain, then a "sure thing" of a few months longer is probably wiser.

[NikLR 13,220]

I-130 does not expire. But may have been denied when the I-485 was.  

[HRQX 4,145]

11 minutes ago, NikLR said:

But may have been denied when the I-485 was.  

Per OP, the I-130 was approved in July 2017. Very common for an I-130 to stay approved after I-485 denial:

 

Edited August 18, 2019 by HRQX

[NikLR 13,220]

I wouldn't say very common but it happens.