Form I-130 Training Petition for Alien Relative

1. Form I-130 TrainingPetition for Alien Relative Texas Service Center October 2010 References: INA §§ 201(b), 203(a); 8 C.F.R. §§ 204.1; 204.2(a),(d),(f),(g),(h); Adjudicator’s Field Manual, Chapter 21

2. Definitions • Immediate Relatives (IR) are defined in INA § 201(b)(2)(A)(i) as aliens related to United States citizens (USC) as: • Spouses • Unmarried children under the age of 21 • Parents *Not subject to worldwide levels or direct numerical limitations on visa issuance AND Have an immigrant visa immediately available upon approval of the Form I-130

3. Family-Based Immigrant Classifications Immediate Relatives • IR-1 Spouse of USC married more than 2 years (Form I-130) • CR-1 (Spouse of USC married less than 2 years) • IR-2 Child of USC (Form I-130) • CR-2 (Child of CR-1) • IR-5 Parent of USC (Form I-130)

4. Definition of Preference Classification • Preference Classifications are defined in INA § 203(a) as aliens related to United States citizens (USC) or lawful permanent residents (LPR) as: • Spouses of a LPR • Unmarried children under the age of 21 of a LPR • Unmarried Sons and Daughters of any age • Married Sons and Daughters of a USC of any age • Brothers and Sisters of a USC of any age * Subject to worldwide levels or direct numerical limitations on visa issuance AND Must wait for an immigrant visa based on the Department of State’s Visa Bulletin upon approval of the Form I-130

5. Family-Based Immigrant Classifications Preferences 1st Preference • F-11 Unmarried Son or Daughter of USC (Form I-130) 2nd Preference 2nd A • F-21 / C-21 Spouse of LPR (Form I-130) • F-22/ C-22 Child of LPR (Form I-130) • F-23 Child of F-21 or F-22 2nd B • F-24/ C-24 Unmarried Son or Daughter of LPR (Form I-130) • F-25 Child of F-24

6. Family-Based Immigrant Classifications Preferences 3rd Preference • F-31 / C-31 Married Son or Daughter of USC (Form I-130) • F-32 Spouse of F-31 • F-33 Child of F-31 or F-32 4th Preference • F-41 Brother or Sister of USC (Form I-130)

7. Visa Bulletin • The Department of State regulates the worldwide levels of visa allocations in a monthly publication called the Visa Bulletin. The Visa Bulletin can be found at the following website: www.travel.state.gov/visa Here is an example of the Visa Bulletin for Family Preferences:

8. Working Definitions – Spouse Marriage • The validity of a marriage is generally governed by the place where it was celebrated or contracted. See Matter of P-, 4 I&N Dec. 610 (BIA 1952); see also Matter of Weaver, 16 I&N Dec. 730 (BIA 1979) • A marriage not valid in the place where the couple has lived and will continue to live is invalid even if legal in the place where celebrated. See Matter of Zappia, 12 I&N Dec. 439 (BIA 1967) • Example: Marriage between first cousins is valid in some U.S. states but not in other U.S. states.

9. Working Definitions – Spouse Polygamous Marriages • A polygamous marriage (an individual with two or more spouses at the same time) is never recognized as valid for immigration purposes even if it is valid where the polygamous marriage was contracted. See Matter of H-, 9 I&N Dec. 640 (BIA 1962)

10. Working Definitions – Spouse Common-Law Marriages • A kind of marriage recognized by some U.S. states and some foreign countries for individuals who hold themselves out to the public as married without a civil status. See Matter of Garcia, 16 I&N Dec. 623 (BIA 1978); see also Matter of Reyes, 16 I&N Dec. 436 (BIA 1978).

11. Working Definitions – Spouse Divorce • A divorce must be legally recognized where the parties reside. See Matter of Weaver, 16 I&N Dec. 730 (BIA 1979) • A divorce conducted at a foreign consulate inside the United States is not recognized in the United States. See Matter of Hassan, 15 I&N Dec. 16 (BIA 1976) • A couple who is legally separated is ineligible for a spousal relationship and considered the same as a divorced couple for immigration purposes. See Matter of Lenning, 17 I&N Dec. 476 (BIA 1980) • Divorce is not recognized in the Philippines before March 11, 1917 or after August 29, 1950, but a divorce may be obtained in another country where it is permissible if the parties reside in that country. Filipino courts may, however, issue legal separations or annulments. See Matter of Whitehurst, 12 I&N Dec. 299 (BIA 1967)

12. Adjudication of Immediate Relative Spouse (IR-1) & Spouse of LPR (F-21) Initial Evidence • Copy of the record of marriage • civil marriage certificates from the country’s government • household registries or family registries • Religious marriage certificates are generally not acceptable evidence • Documentation for termination of all prior marriages for either spouse if ever previously married • Passport-style color photo for both petitioner and beneficiary

13. Adjudication of Spousal Petitions Initial Evidence (Continued) • Signed and completed Form G-325A, Biographical Information, for both petitioner and beneficiary • Proof of petitioner’s U.S. Citizenship or LPR status • City, county, or state-issued birth certificate • Biographical page of United States passport • Certificate of Naturalization or Citizenship • Report of Birth Abroad of a Citizen of the United States (DOS Form FS-240) • Statement executed by a U.S. consular officer certifying U.S. citizenship and the petitioner is the bearer of a U.S. passport • Alien Resident Card (Form I-551) • Foreign passport with temporary I-551 stamp showing LPR status

14. Bona Fides of Marriage Relationship • According to the instructions for Form I-130 [see 8 C.F.R. § 103.2(b)(1)], the petitioner in addition to the required evidence “should also submit one or more of the following types of documentation that may evidence the bona fides of the marriage”. Additional evidence to establish the bona fides of the marriage when necessary may be: • Documentation of joint ownership or property; • A lease of joint tenancy of a common residence; • Documentation of co-mingling of financial resources; • Birth certificates of children born to the petitioner and the beneficiary;

15. Bona Fides of Marriage Relationship • Affidavits sworn to or affirmed by third parties having personal knowledge of the bona fides of the marital relationship. • Each affidavit must contain the full name and address, date and place of birth of the person making the affidavit, his or her relationship to the petitioner or beneficiary (if any), and complete information and details explaining how the person acquired his or her knowledge of the marriage. • In order to accept affidavits, there must be at least two affidavits at minimum and each affidavit ought to be made by someone at least 18 years old. See 8 C.F.R. § 103.2(b)(2)(i). • Any other relevant documentation to establish an ongoing marriage.

16. Adjudication of Immediate Relative Child (IR-2) & Child of LPR (F-22) Initial Evidence Children Born In Wedlock • Proof of petitioner’s U.S. Citizenship or LPR status • If the petitioner is the mother: • A copy of the child’s birth record giving both the child’s name and the mother’s name • If the petitioner is the father: • A copy of the child’s birth record giving both the child’s name and the father’s name • A copy of the father’s record of marriage to the child’s mother

17. Record of Birth • Some U.S. states and countries issue “abstracts” of birth records, birth cards, or short forms of the birth certificate. These documents are insufficient because they do not list the parent(s) names on them; the long form is required. • Delayed birth certificates (“delayed” being defined as registered by the city, county, or state more than six months after the date of birth) may be insufficient to establish a parent-child relationship or citizenship because of the delay between the birth event and the public recognition of the child; secondary evidence may be necessary. See Matter of Serna, 16 I&N Dec. 643 (BIA 1978)

18. Adjudication of Child Classifications Initial Evidence Children Born Out of Wedlock • Proof of petitioner’s U.S. Citizenship or LPR status • If petitioner is the mother: • A copy of the child’s birth record giving both the child’s name and the mother’s name • If the petitioner is the father: • A copy of the child’s birth record giving both the child’s name and the father’s name • Evidence of legitimation (if required by country of child’s birth) of the child by the father under the laws of the child’s residence or under the laws of the father’s residence • Evidence of the father’s legal custody of the child • If the child was not legitimated (if required by country of child’s birth), evidence of a bona fide parent-child relationship prior to the child’s 21st birthday

19. Familial Relationship Summary: Legitimated NOTE! • A child that is born out of wedlock • but has been legitimated • under laws of country where the child resides or • under the laws where the father resides or • is born in a country where legitimation laws have been eliminated or do not exist only has to prove he or she is the biological child of the petitioning parent. It is not a requirement that the child and parent have an ongoing relationship in fact. See INA § 101(b)(1)(C); see also Matter of Reyes, 17 I&N Dec. 512 (BIA 1980)

20. Familial Relationship Summary: Not Legitimated NOTE! • A child that is born out of wedlock • and has not been legitimated • under laws of country where the child resides or • under the laws where the father resides and • is born in a country where legitimation laws have notbeen eliminated and continue to exist must prove that he or she is the biological child of parent and prove a bona fide parent-child or ongoing relationship in fact in a visa petition after November 6, 1986. Prior to November 6, 1986, the child must have been legitimated. See INA § 101(b)(1)(C); see also Matter of Attembe, 19 I&N Dec. 512 (BIA 1980)

21. Bona Fide Parent-Child Relationship • A bona fide parent-child relationship establishes more than a mere biological relationship and includes emotional and/or financial ties, a genuine concern and interest by the parent for the child’s support, instruction, and general welfare. • Evidence of a bona fide parent-child relationship includes the parent and the child actually having lived together or the parent holding the child out as being his own child and the parent has provided for some or all of the child’s needs or the parent’s behavior has evidenced a genuine concern for the child.

22. Evidence of a Bona Fide Parent-Child Relationship • Evidence to establish a bona fide parent-child relationship may include: • Baptismal certificate for the child • Records issued by a religious organization • School records for the child • Parent’s insurance policies (life, medical, dental, etc.) where the child is a dependent • Medical records for the child (vaccines, doctor bills, or hospital bills) • Military records showing claimed family members’ names and/or military pay allotments • Military registration forms showing claimed family members’ names • Social agency or government agency records for the child • Parent’s income tax returns which include the child as a dependent

23. Evidence of a Bona Fide Parent-Child Relationship • Court order(s) granting legal custody of the child to the parent • Ration cards (records listing names of all family members) • Property documents listing both parents’ names • Voting records listing all family members • Receipts for remittances, money orders, cancelled checks, drafts, or other documentation of financial support from the parent to the child • Dated correspondence between the parent and the child (if living apart) • Government-issued identification papers, passports, deeds, business transactions, family Bible entries, or records of family events

24. Evidence of a Bona Fide Parent-Child Relationship • There is no legal requirement that the evidence pertaining to a bona fide parent-child relationship must include both the child’s name and the parent’s name in order to link the two together. For example, evidence of monetary support may not bear the child’s name. • In addition, the fact that the evidence includes both the child’s name and the parent’s name may not be sufficient to establish proof of a bona fide parent child relationship. For example, the appearance of the father’s name on a school document may only establish paternity.

25. Adjudication of Child Classifications Initial Evidence Stepchildren • Proof of petitioner’s U.S. Citizenship or LPR status • A copy of the child’s birth record giving the child’s name and the child’s natural parent’s name • A copy of the record of marriage between the child’s natural parent and the stepparent • In accordance with INA § 101(b)(1)(B), the marriage between the child’s biological parent and the stepparent must have occurred before the child’s 18th birthday. • Documentation of all terminations of any prior marriages for either the child’s natural parent or the child’s stepparent

26. Adjudication of Child Classifications Initial Evidence Adopted Children • Proof of petitioner’s U.S. Citizenship or LPR status • A copy of the legal or official adoption decree(s) for the child • *Important* An adoption takes place under the laws where the adoption occurred, not under U.S. law unless adopted in the U.S. • Child must have been adopted while under the age of 16 or • Adopted within the same family as his or her natural sibling while under the age of 18 • Evidence of the adopted child residing with the adopting parents for 2 years before or after the adoption • Evidence of legal custody of the child with the adopting parents for 2 years before or after the adoption

27. Adjudication of Unmarried Sons or Daughters of USC (F-11) & LPR (F-24) • A unmarried son or daughter is defined as any person (whether related biologically or through adoption or legitimation) over the age of 21 at the time of filing the I-130

28. Adjudication of Unmarried Sons or Daughters • Two important legal principles govern the adjudication of an unmarried son or daughter: • 1) An unmarried son or daughter beneficiary must have met the definition of a child under INA § 101(b)(1) at some point in the son or daughter’s life before his or her 21st birthday. See Matter of Au Yeung, 16 I&N Dec. 540 (BIA 1978). • 2) An unmarried son or daughter whose relationship to his or her parent or step-parent is created after the child 21st birthday (or 18th birthday for stepchild) is ineligible for F-11 or F-24 classification. See Matter of Coker, 14 I&N Dec. 521 (BIA 1974).

29. Adjudication of Unmarried Sons or Daughters Initial Evidence Children Born In Wedlock • Proof of petitioner’s U.S. citizenship or LPR status • Copy of any prior terminations of marriages for beneficiary (i.e., divorce, annulment, or record of death) • If petitioner is the mother: • A copy of the child’s birth record giving both the child’s name and the mother’s name • If the petitioner is the father: • A copy of the child’s birth record giving both the child’s name and the father’s name • A copy of the father’s record of marriage to the child’s mother

30. Adjudication of Unmarried Sons or Daughters Initial Evidence Children Born Out of Wedlock • Proof of petitioner’s U.S. citizenship or LPR status • Copy of any prior terminations of marriages for beneficiary • If petitioner is the mother: • A copy of the child’s birth record giving both the child’s name and the mother’s name • If the petitioner is the father: • A copy of the child’s birth record giving both the child’s name and the father’s name • Evidence of legitimation (if required by country of child’s birth) of the child by the father under the laws of the child’s residence or under the laws of the father’s residence • If the child was not legitimated (if required by country of child’s birth), evidence of a bona fide parent-child relationship prior to the child’s 21st birthday

31. Adjudication of Unmarried Sons or Daughters Initial Evidence Stepchildren • Proof of petitioner’s U.S. citizenship or LPR status • Copy of any prior terminations of marriages for beneficiary • A copy of the child’s birth record giving the child’s name and the child’s natural parent’s name • A copy of the record of marriage between the child’s natural parent and the stepparent • Documentation of all terminations of any prior marriages for either the child’s natural parent or the child’s stepparent

32. Adjudication of Unmarried Sons or Daughters Initial Evidence Adopted Children • Proof of petitioner’s U.S. citizenship or LPR status • Copy of any prior terminations of marriages for beneficiary • A copy of the legal or official adoption decree(s) for the child • Evidence of legal custody of the child with the adopting parents for 2 years before or after the adoption • Evidence of the adopted child residing with the adopting parents for 2 years before or after the adoption

33. Adjudication of Married Sons or Daughters of USC (F-31) • A married son or daughter is defined as any person (whether related biologically or through adoption or legitimation), regardless of age, who is currently married at the time of filing the I-130.

34. Adjudication of Married Sons or Daughters • Two important legal principles govern the adjudication of a married son or daughter: • 1) A married son or daughter beneficiary must have met the definition of a child under INA § 101(b)(1) at some point in the son or daughter’s life before his or her 21st birthday. See Matter of Au Yeung, 16 I&N Dec. 540 (BIA 1978). • 2) A married son or daughter whose relationship to his or her parent or step-parent is created after the child 21st birthday (or 18th birthday for step-parent) is ineligible for F-31 classification. See Matter of Coker, 14 I&N Dec. 521 (BIA 1974).

35. Adjudication of Married Sons or Daughters Initial Evidence Children Born In Wedlock • Proof of petitioner’s U.S. citizenship • Copy of beneficiary’s record of marriage if other evidence suggests beneficiary is unmarried. Otherwise, the marriage record is not an automatic requirement for every case. • Copy of any prior terminations of marriages for beneficiary (i.e., divorce, annulment, or record of death) • If petitioner is the mother: • A copy of the child’s birth record giving both the child’s name and the mother’s name • If the petitioner is the father: • A copy of the child’s birth record giving both the child’s name and the father’s name • A copy of the father’s record of marriage to the child’s mother

36. Adjudication of Married Sons or Daughters Initial Evidence Children Born Out of Wedlock • Proof of petitioner’s U.S. citizenship • Copy of beneficiary’s record of marriage • Copy of any prior terminations of marriages for beneficiary • If petitioner is the mother: • A copy of the child’s birth record giving both the child’s name and the mother’s name • If the petitioner is the father: • A copy of the child’s birth record giving both the child’s name and the father’s name • Evidence of legitimation (if required by country of child’s birth) of the child by the father under the laws of the child’s residence or under the laws of the father’s residence • If the child was not legitimated (if required by country of child’s birth), evidence of a bona fide parent-child relationship prior to the child’s 21st birthday

37. Adjudication Married Sons or Daughters Initial Evidence Stepchildren • Proof of petitioner’s U.S. citizenship • Copy of beneficiary’s record of marriage • Copy of any prior terminations of marriages for beneficiary • A copy of the child’s birth record giving the child’s name and the child’s natural parent’s name • A copy of the record of marriage between the child’s natural parent and the stepparent before the child’s 18th birthday • Documentation of all terminations of any prior marriages for either the child’s natural parent or the child’s stepparent

38. Adjudication of Married Sons or Daughters Initial Evidence Adopted Children • Proof of petitioner’s U.S. citizenship • Copy of beneficiary’s record of marriage • Copy of any prior terminations of marriages for beneficiary • A copy of the legal or official adoption decree(s) for the child • Evidence of legal custody of the child with the adopting parents for years before or after the adoption • Evidence of the adopted child residing with the adopting parents for 2 years before or after the adoption

39. Adjudication of Immediate Relative Parent (IR-5) Initial Evidence Parents • Proof of petitioner’s U.S. citizenship • If beneficiary is the mother: • A copy of the petitioner’s birth record giving both the petitioner’s name as the child and the mother’s name • If the beneficiary is the father: • A copy of the petitioner’s birth record giving both the petitioner’s name as the child and the father’s name • A copy of the father’s record of marriage with the petitioner’s mother OR • Evidence of legitimation (if required by country of petitioner’s birth) of the petitioner by the father under the laws of the petitioner’s residence or under the laws of the petitioner’s residence • If the petitioner was not legitimated (if required by country of petitioner’s birth), evidence of a bona fide parent-child relationship prior to the petitioner’s 21st birthday

40. Adjudication of Immediate Relative Parent (IR-5) Initial Evidence Step-Parents • Proof of petitioner’s U.S. citizenship • If beneficiary is the step-father: • A copy of beneficiary’s record of marriage to the petitioner’s mother • A copy of the petitioner’s birth record giving both the petitioner’s name as the child and the mother’s name • If the beneficiary is the step-mother: • A copy of the record of marriage of the beneficiary to the petitioner’s father • A copy of the petitioner’s birth record giving both the petitioner’s name as the child and the father’s name OR • Evidence of legitimation (if required by country of petitioner’s birth) of the petitioner by the father under the laws of the petitioner’s residence or under the laws of the petitioner’s residence • If the petitioner was not legitimated (if required by country of petitioner’s birth), evidence of a bona fide parent-child relationship prior to the petitioner’s 21st birthday

41. Adjudication of Immediate Relative Parent (IR-5) Initial Evidence Adoptive Parents • Proof of petitioner’s U.S. citizenship • A copy of the legal or official adoption decree(s) for the petitioner • Evidence of legal custody of the petitioner with the adopting beneficiary parent for 2 years before or after the adoption • Evidence of the petitioner residing with the beneficiary parent for 2 years before or after the adoption

42. Special Cases – Parents • A USC petitioner must be at least 21 years old in order to file a Form I-130 for his or her parent(s). 8 C.F.R. § 204.2(f)(1); see also Matter of Hassan, 16 I&N Dec. 16 (BIA 1976). • A USC petitioner must have been considered a child born in wedlock, a legitimated child, an adopted child, or considered to have had a bona fide parent-child relationship prior to the petitioner reaching 21 years of age in order to file a Form I-130 on behalf of his or her parent. See Matter of Quispe, 16 I&N Dec. 174 (BIA 1977).

43. Adjudication of Brothers or Sisters of USC (F-41) • Three important legal principles govern the adjudication of a petition for a brother or a sister: • 1) A petitioning brother or sister only requires one parent in common with the beneficiary (whether related biologically, through adoption, legitimation, or marriage). See Matter of Bourne, 16 I&N Dec. 367 (BIA 1977). • 2) The petitioning brother or sister and beneficiary brother or sister both must have met the definition of a child under INA § 101(b)(1) prior to their 21st birthdays. See Matter of Coker, 14 I&N Dec. 521 (BIA 1974). • 3) A stepbrother-stepsister relationship may continue to exist even after the termination of the marriage creating the step relationship if there is evidence of a continuing relationship in fact. See Matter of Mourillon, 18 I&N Dec. 122 (BIA 1979).

44. Adjudication of Brothers or Sisters Initial Evidence Brother or Sister Born In Wedlock • Proof of petitioner’s U.S. citizenship • If the common parent is the mother: • A copy of both the petitioner’s and beneficiary’s birth record giving both the child’s name and the mother’s name • If the common parent is the father: • A copy of both the petitioner’s and beneficiary’s birth record giving both the child’s name and the father’s name • A copy of the father’s record of marriage to the brother’s or sister’s mother

45. Adjudication of Brothers or Sisters Initial Evidence Brother or Sister Born Out of Wedlock • Proof of petitioner’s U.S. citizenship • If the common parent is the mother: • A copy of both the petitioner’s and beneficiary’s birth record giving both the child’s name and the mother’s name • If the common parent is the father: • A copy of both the petitioner’s and beneficiary’s birth record giving both the child’s name and the father’s name • Evidence of legitimation (if required by country of child’s birth) of the child by the father under the laws of the child’s residence or under the laws of the father’s residence • If the child was not legitimated (if required by country of child’s birth), evidence of a bona fide parent-child relationship prior to the child’s 21st birthday

46. Adjudication of Brothers or Sisters Initial Evidence Stepbrother or Stepsister • Proof of petitioner’s U.S. citizenship • A copy of the petitioner’s and beneficiary’s birth record giving the child’s name and the child’s natural parents’ name • A copy of the record of marriage between the petitioner’s and beneficiary’s stepparents • Documentation of all terminations of any prior marriages for either stepparent

47. Adjudication of Brothers or Sisters Initial Evidence Adopted Brother or Sister • Proof of petitioner’s U.S. citizenship • A copy of the legal or official adoption decree(s) for the brother or sister • Evidence of legal custody of the child with the adopting common parent(s) for 2 years before or after the adoption • Evidence of the adopted child residing with the adopting common parent(s) for 2 years before or after the adoption

48. Special Cases – Brother or Sister • A USC petitioner must be at least 21 years old in order to file a Form I-130 for his or her brother or sister. See 8 C.F.R. § 204.2(g)(1)

49. Special Considerations

50. Adam Walsh Act • On July 27, 2006, the President signed the Adam Walsh Child Protection and Safety Act of 2006 (Adam Walsh Act), Pub. L. 109-248, to protect children from sexual exploitation and violent crimes, to prevent child abuse and child pornography, to promote Internet safety, and to honor the memory of Adam Walsh and other child crime victims.