In all cases, an offer of employment must have been bona fide, and the employer must have had the intent, at the time the Form I-140 was approved, to employ the beneficiary upon adjustment. It should be noted that there is no requirement in statute or regulations that a beneficiary of a Form I-140 actually be in the underlying employment until permanent residence is authorized. Therefore, it is possible for an alien to qualify for the provisions of §106(c) of AC21 even if he or she has never been employed by the prior petitioning employer or the subsequent employer. 

PETITION REVOCATION

*Automatic Revocation

(1) Family-Based Petitions . A relative petition may be automatically revoked if :

(a) The petitioner withdraws the petition,

(b) If the petitioner or beneficiary dies,

(c).Upon legal termination of the marriage upon which the petition was based,

(d).Upon the marriage of a second preference unmarried son or daughter, or

(e).Upon the termination of status of a lawful permanent resident petitioner (unless he or she becomes a U.S. citizen).

There are other provisions for revocation which allow for automatic conversion to a different classification. 

In the case of the death of the petitioner, USCIS may choose not to revoke the petition for humanitarian reasons.

NOTE: Opting not to revoke a petition is a matter strictly within the discretion of USCIS .

(2) Employment-Based Petitions

An employment-based petition may be automatically revoked if:

(b)If the petitioner or beneficiary dies,

(c)If the petitioner withdraws the petition, or

(d)If the petitioner goes out of business.

*The Department of State may also terminate the registration of any alien who does not apply for an immigrant visa within one year of being notified of the availability of the visa. This provision is found in Section 203(g) of the Immigration and Nationality Act.

 If a Consular officer obtains information that a petition has been automatically revoked or if registration has been terminated under 203(g), the petition will be returned to USCIS.

In some cases the action to revoke the petition may be initiated by the consular office due to information acquired during their review of the petition or during an interview with the beneficiary. Such a petition would  be returned by the consular office with a memo explaining the reasons the petition should be revoked.

 If the petitioner does not overcome the basis for the revocation, or fails to respond timely, a decision of revocation on Form I-292 will be issued. A petitioner may file an appeal on a decision to revoke a petition just as if the petition had been denied originally.

 Revocation proceedings will not be instituted if the beneficiary has already been adjusted or has been admitted to the United States with an immigrant visa. When the petition has been used, in effect, it no longer exists and the approval cannot be revoked. The appropriate course of action in that case will be to institute deportation or rescission proceedings.

PETITION WITHDRAWAL

A petitioner or applicant may withdraw a petition or application prior to adjudication. Withdrawal is a voluntary action. It should not be coerced,.Although a withdrawal by a petitioner is not necessarily an indication of fraud, the facts surrounding any prior withdrawal will be considered in the event a subsequent petition is filed by the same petitioner.  A petition which has been withdrawn cannot be denied.

 Where a visa petition has once been withdrawn based on an admission by a party that the marriage was solely entered into to bestow an immigration benefit, any subsequently filed visa petition involving the same petitioner and beneficiary must include at the time of filing:

(1) An explanation of the prior withdrawal and

(2) Evidence supporting the bona fides of the parties' relationship.

The petitioner bears a heavy burden to establish the bona fides of the marital relationship in the case of a prior visa petition withdrawal and an admission of a fraudulent marriage, and, absent the submission of the previously related materials at the time of filing,USCIS may  reasonably deny the petition based on the admission made in conjunction with the prior withdrawal.

RELATIVE VISA PETITIONS:  I-130

The need for an approved immigrant visa petition to qualify for most visa classifications and adjustment of status to that of a permanent resident  has remained a basic requirement of the law.

USCIS has the responsibility of determining if the beneficiary of a relative visa petition is eligible for the classification sought.

A beneficiary will be eligible for a visa petition based on being an immediate relative of a U.S citizen.(immediate relatives are spouse, parent and child under 21 of US citizen) these are not subject to any numerical limitation .

Unlike the immediate relative petitions, the dependents (spouse and child(ren) of a beneficiary of a preference petition receives derivative immigrant visa classification if they are accompanying or following to join the principal beneficiary.

“Accompanying” refers to a dependent who is immigrating concurrently with, or who has an immigrant visa issued within 6 months after, the principal alien’s admission or adjustment; “following to join” refers to an alien who is immigrating more than 6 months after the principal alien, but based on a relationship which existed at the time of the principal alien’s immigration, provided that relationship still exists at the time of the dependent’s application for admission to the United States.

The family-based preference classifications are:

• First preference includes the unmarried sons and daughters of United States citizens;

• Second preference includes the spouses, children, and unmarried sons and daughters of lawful permanent resident aliens;

Note : If a lawful permanent resident acquired a dependent prior to such Lawful Permanent Resident’s immigration or adjustment (for example the LPR had already married the spouse or the parent-child had been established), the dependent could qualify for a following to join visa classification and would not need a second preference petition or a second preference quota number.

• Third preference  includes the married sons and daughters of United States citizens;

• Fourth preference  includes the brothers and sisters of United States citizens.

The Petition for Alien Relative is filed with USCIS by a United States citizen or lawful permanent resident on behalf of an alien relative to establish eligibility for the exemption or preference.

 Preference aliens need a priority date for visa issuance, and that date is generally established when the petition is properly filed and accepted by USCIS.

The priority date is the chronological date which establishes the preference alien's place on a waiting list maintained by the Department of State for issuance of the immigrant visa numbers.

PETITION FOR A SPOUSE.

(Petition By Citizen or Lawful Permanent Resident  for a Spouse) .

A petitioner may file an I-130 immigrant visa petition and the beneficiary may file an I-485 adjustment application concurrently(at the same time). In order to file concurrently, the I-130 petitioner and the I-485 applicant (who is also the I-130 beneficiary) must be able to meet all the requirements of both forms.

 For example:

• If the beneficiary of the I-130 is subject to section 212(e) of the Immigration and Nationality Act as an exchange visitor who has neither complied with nor obtained a waiver of the 2-year foreign residency requirement, the I-485 cannot be filed. The I-130 can be filed separately at the appropriate service center.

• If the petitioner is a Lawful Permanent Resident and second preference visa numbers are not “current,” the beneficiary cannot apply for adjustment of status. Again, the I-130 would have to be filed separately at the appropriate service center.

• If the beneficiary entered the U.S. on a K-1 visa and the I-130 petitioner is not the same person who filed the I-129F petition, the alien is prohibited from adjusting status.

Documentation must be submitted to establish both the standing of the petitioner (evidence of U.S. citizenship or lawful permanent residence) and validity of relationship (evidence of the lawful marriage of the petitioner and beneficiary and of the termination of any and all prior marriages of both parties).

As a general rule, the validity of a marriage is judged by the law of the place of celebration. If the marriage is voidable but no court action to void the marriage has taken place, it will be considered valid for immigration purposes. However, if a marriage is valid in the country where celebrated but considered offensive to public policy of the United States, it will not be recognized as valid for immigration purposes.

If there is evidence that the beneficiary has attempted or conspired to enter into a marriage for the purpose of evading the immigration laws, the petition will be denied. if an alien has attempted of conspired to enter into a fraudulent marriage, CIS would also be barred from approving any subsequent petition including  I-140 petition filed in his or her behalf.

The petitioner and the beneficiary are usually interviewed to determine whether the marriage is bona fide. The issue to be resolved during the interview is the bona fides of the marriage, not its “viability” (i.e., the probability of the parties remaining married for a long time).

A marriage which was contracted solely for immigration purposes does not confer any benefits under the law. This is often known as a sham marriage.
 A number of factors may raise questions about the intent of the marriage, and therefore necessitate more in depth questioning .Some indications that a marriage may have been contracted solely for immigration benefits include:

• Large disparity of age;

* Inability of petitioner and beneficiary to speak each other's language;

• Vast difference in cultural and ethnic background;

• Family and/or friends unaware of the marriage;

• Marriage arranged by a third party;

• Marriage contracted immediately following the beneficiary's apprehension or receipt of notification to depart the United States;

• Discrepancies in statements on questions for which a husband and wife should have common knowledge;

• No cohabitation since marriage;

• Beneficiary is a friend of the family;

• Petitioner has filed previous petitions in behalf of aliens, especially prior alien spouses.   

 A sham marriage has been defined  as a marriage which may comply with all the formal requirements of the law but which the parties entered into with no intent, or "good faith", to live together and which is designed solely to circumvent the immigrations laws. Sham marriages are not recognized for immigration purposes.

Whether an alleged marriage is valid for purposes of immigration is a question of Federal law, not of State law. Federal law has defined  the word ‘marriage’ to means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife. For a relationship to qualify as a marriage for purposes of Federal Law, one partner must be a man, and the other a woman. Therefore Application for an immigration benefit which is based on a same sex marriage will be denied.

 In an effort to deter immigration-related marriage fraud, there are Criminal penalties imposed on  individuals who are convicted of having engaged in a fraudulent marriage.

• An alien’s lawful permanent residence is “conditional” if the qualifying marriage occurred less than 2 years prior to the alien’s immigration or adjustment. The conditional resident alien is required to seek removal of the conditional basis of the residence shortly before the second anniversary of the date on which he or she immigrated or adjusted.

The law generally prohibits the approval of a visa petition filed by a lawful permanent resident for a spouse within 5 years of the date on which the petitioner became a Lawful Permanent Resident if that Lawful Permanent Resident  obtained his or her residence status through a prior marriage. The Lawful Permanent Resident  can overcome this prohibition if he or she establishes by clear and convincing evidence that the prior marriage was not entered into with the purpose of evading the immigration laws, or that the prior marriage ended through death.
                                                                                                                                                             

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There is a prohibition against approval of visa petition filed on behalf of an alien by a United States citizen or a lawful permanent resident spouse if the marriage creating the relationship occurred on or after November 10, 1986, and was contracted while the alien was in exclusion, deportation, or removal proceedings. The petitioner can request an exemption from the above prohibition if he or she:

(i) Is able to establish through clear and convincing evidence that:

• the marriage was entered into in good faith; and

• the marriage was not entered into for the purpose of obtaining Lawful Permanent Resident status for the beneficiary; or (ii) The alien beneficiary has resided outside the United States for at least two years after the date of the marriage.

PETITION BY CITIZEN OR LAWFUL PERMANENT RESIDENT FOR A CHILD, SON OR DAUGHTER.

A visa petition may be filed on behalf of a child by either a citizen or lawful permanent resident of the U.S. A citizen and, in certain circumstances a Lawful Permanent Resident, may file a visa petition on behalf of a son or daughter. A citizen may also file an I-130 petition for an orphan, but a lawful permanent resident may not. There are four basic issues which must be taken into consideration:

1. The petitioner’s status,

2.The beneficiary’s age,

3.The beneficiary’s marital status, and

4.The relationship between the petitioner and the beneficiary.

Note: With each of these factors, the criteria must be met not just at the time of filing, but also at the time of the adjudication of the petition. Furthermore, in most circumstances, the criteria must continue to be met after the petition’s approval and until the beneficiary becomes an Lawful Permanent Resident; otherwise, the petition’s approval may be revoked.

• Petitioner’s Status - The petitioner may be a citizen of the U.S. or a lawful permanent resident of the U.S.

•  The age of the beneficiary affects the classification under which a petition may be approved. If under age 21 and unmarried, the (otherwise eligible) beneficiary is considered to be a child; if 21 or older or if married, the (otherwise eligible) beneficiary is considered a son or daughter).

• Marital Status of Beneficiary  can affect the classification under which the petition is approved; In the case of a petition filed by a Lawful Permanent Resident, it makes the difference between an approval and a denial:

Since a lawful permanent resident can petition on behalf of an unmarried son or daughter regardless of age, it is important that the beneficiary has either never been married or has terminated any and all prior marriages before the petitioner files the petition or else the petition will be denied

Relationship Between Petitioner and Beneficiary .

Not only the nature of the relationship (e.g., legitimate child, illegitimate child, adopted child step child), but also the point at which the relationship existed (e.g., the child’s age at the time of the marriage between his or her parent and stepparent or at the time of the petitioner’s acquisition of status).

Relationship Between Petitioner and Beneficiary .

(1) Child Born in Wedlock (Formerly Referred to as “Legitimate Child”) .

The phrase “child, son or daughter born in wedlock” includes an individual born to a couple in a “common law” marriage, if the common law marriage is recognized by the State or foreign country in which the couple resides.

(2) Step Child :

(A) Creation of the Stepparent-Stepchild Relationship .

A stepchild relationship is created whenever a parent of the child marries someone (other than the child’s other parent) before the child’s 18th birthday. The relationship is created automatically as a result of the marriage, assuming that the marriage is not a sham .

(B) Termination of Stepparent-Stepchild Relationship .

Normally, a step relationship terminates when a marriage ends, especially if it ends in divorce.  However, under certain circumstances a step relationship may continue after the death of the natural parent or even after the legal separation or divorce of the stepparent and natural parent if there is an ongoing relationship between the stepparent and stepchild. If the marriage ends in annulment, however, the step relationship is deemed to have never existed because legally the marriage never existed.

Note: The creation of a step relationship in no way terminates the relationship between the child and his or her other natural parent (i.e., the one who did not marry the stepparent). It is neither unusual nor improper for a child who acquired Lawful Permanent Resident  status through a stepparent to later petition for the other natural parent once the child naturalizes and reaches the age of 21.

(3) Child Born out of Wedlock (Formerly Referred to as “Illegitimate Child”) .

The mother of an illegitimate child always qualifies as a petitioner. The natural father of a child born out of wedlock may petition for that child, if the father has or had a bona fide parent- child relationship with the child. A bona fide parent-child relationship is established when the father has or had evinced an active concern for the child's support, instruction and general welfare. The parent-child relationship must be established while the child is unmarried and under twenty-one (21) years of age.

(4) Child Adopted While Under the Age of 16 .

 An adoptive parents can file a petition on behalf of  a child adopted while under the age of sixteen years if the child has been in the legal custody of, and has resided with, the adopting parent or parents for at least two years: Provided, That no natural parent of any such adopted child shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under the Immigration and Nationality Act; USCIS will  determine if the petitioner and beneficiary are related through adoption or if their natural relationship was severed through an adoption.

Aliens who gain permanent resident status in the U.S. through adoptive parents are not eligible to pass on immigration benefits to their natural parents. Also, the beneficiary's date of birth, the date of the adoption and time spent residing with and in the legal custody of the adoptive parents are critical in establishing the validity of the relationship.

The petitioner, as adoptive parent, has the burden of proof in establishing that primary parental control has been exercised by him/her during the requisite residence period.

Petition by Adopted Child for Natural Parent(s) Prohibited .

If a woman or couple give up a child for adoption, and that adoption meets the requirements set forth in section 101(b) of the immigration and Nationality Act, the natural parent(s) can gain no immigration benefit from that child. Accordingly, such child is prohibited from petitioning for his or her natural parent(s), since the relationship between the child and the natural parent(s) was severed at the time of the adoption. This prohibition is in effect regardless of whether the child gains any immigration benefit through his or her adoptive parents .

An adopted child may not confer immigration benefits upon his or her natural sibling, because their common natural parent no longer has the status of parent of the adopted child for immigration purposes.

However, if the adoption in question does not meet all of the requirements of section 101(b) of the Immigration and Nationality Act (e.g., if the child was over age 16 at the time of the adoption), then the child is not prohibited from petitioning for such natural parent(s).

PETITION FOR A PARENT

(1) Only a citizen of the U.S. may file a visa petition for a parent. A petition filed by a Lawful Permanent Resident  will be denied.   

 (2) Age . The petitioner must be at least 21 years old at the time of filing.     

 (3) Relationship . In order for the beneficiary to be considered the parent of the petitioner:

• The petitioner must have once qualified as the child of the beneficiary.; and

• The relationship must continue to exist, even though the petitioner is over age 21 and, therefor, no longer a child. If the relationship has been terminated (as would happen in the case of a stepparent-stepchild relationship if marriage between the stepparent and natural parent were to be terminated by divorce or annulment, or would happen in the case of any other parent-child relationship if the child were to be given up for adoption), the beneficiary would no longer be eligible for classification as a parent, even though the petitioner had once been considered to be the beneficiary’s child.
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The requirements for establishing the parent-child relationship are the same as with petitions for children, In addition to evidence of U.S. citizenship , the petitioner must also provide evidence of the claimed relationship.

Petitions for More than Two Parents .

There is no limitation on the number of parents for whom a single petitioner may file visa petitions. For example, if the (alien) natural parents of the petitioner divorced and both remarried other aliens prior to the petitioner’s 18th birthday, the petitioner could file petitions for his natural mother, his natural father, his stepmother and his stepfather. There are no provisions in the law for issuance of a visa to a dependent spouse or child of a parent of U.S. citizen.

PETITION FOR A SIBLING.

Only a U.S. citizen who is 21 years of age or older may file a petition for a brother or sister for classification. It must be established that the petitioner and beneficiary are or once were “children of a common parent" . A consanguineous (i.e., blood) relationship between the petitioner and the beneficiary is not required .

The parent-child relationships can be established through any of the means recognized in the definition of child contained in the immigration and Nationality Act. (i.e., through birth, through adoption, or through a marriage creating a steprelationship). As in the case of a stepparent-stepchild relationship, a step sibling relationship is normally dissolved should the marriage of the parent and stepparent end in divorce or annulment .The adjudication of a petition for a sibling is more like an adjudication of two separate relationships:

1.The relationship between the petitioner and his/her parent, and

2.The relationship between the beneficiary and that same parent. The documentation required to establish a sibling relationship varies and depends entirely on the parental combination through which the relationship occurs. 

Eligibility for relative classification as a brother or sister depends upon the petitioner establishing that both petitioner and beneficiary were "children" of a common parent. This relationship is usually established through the submission of the birth certificates of the petitioner and beneficiary, as well as evidence of the relationship between their parents, where appropriate. 

  In order to qualify as step siblings, either

(1) the marriage which created the step-relationships must continue to exist, or

(2) where parties to that marriage have legally separated or the marriage also terminated by death or divorce, a family relationship must continue to exist as a matter of fact between the "stepsiblings".
 An adopted child may not confer immigration benefits upon his or her natural sibling, because their common natural parent no longer has the status of parent of the adopted child for immigration purposes.

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