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Should I file a second I-130 petition if the first one was refused at the embassy?
Hi, I'm Jim Hacking, an experienced immigration attorney practicing law throughout the United States at our offices in St. Louis, San Diego, and Washington, D.C. Let’s talk about that unusual situation where an I-130 gets approved at USCIS; it's processed through the National Visa Center, it goes to the embassy, and then the embassy refuses it. Sometimes they refuse it, and then they sit on it, and nothing happens, and it seems as if the case is dead.
The question is, should you then go ahead and file a new I-130, a Petition for Alien Relative? I don't believe that's the right approach. I was talking to a client today who had a lawyer do that for him. I think that doing so will screw up the overall visa petition case and screw up the chances of the foreign national coming to the United States and becoming a green card holder or lawful permanent resident.
Key Takeaways:
It could depend on the basis of the refusal. Remember, not every refusal is created equally.
However, if you receive what's called a 221(g) refusal, which is administrative processing, that just means that they need more evidence or supporting documentation like marriage certificates and birth certificates before issuing the visa. The last thing you want to do at that point is file a new I-130 and pay another filing fee just to end up hurting your case.
I believe that this client that I was talking to came into the clutches of a rather shitty lawyer who just wanted to make an extra buck and decided to submit another Form I-130. Of course, that lawyer screwed it all up. They filed a very thin case on the second case. The lawyer then received a request for evidence from the government, saying that they weren't satisfied that the marriage was legit. The client gave all the evidence to the lawyer, which included their marriage certificate to prove a valid family relationship and other supporting documents, but the lawyer failed to submit it. His secretary allegedly went out on maternity leave. It was never filed, so their second I-130 was denied. If you can believe that. So it's a big old mess.
Important note: There are a lot of bad lawyers out there, so don't forget.
The answer is no.
If you're refused on 221(g), which is just administrative processing, you shouldn't file a new one, you should just sue them. Because that'll get them moving on the old underlying case, and in fact, that's what we decided to sue for. We sued under the 2018 case, the original case, which was refused. The embassy has the authority to revisit that case. They can reopen it, as long as our client was regularly contacting the embassy, which he was.
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In most instances, you're not going to need to file another I-130. The only reason you'd ever file a new I-130 is that the first one was revoked. Otherwise, it's valid.
If the State Department never sends it back to USCIS for possible revocation, or if it is sent back and USCIS elects not to revoke the I-130, that's still valid, and you can get action on that later. In most situations, I would not file a second I-130 if the first one is refused.
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