What is the difference between the I-130 Petition process in cases that are based on marriage to a US Citizen, between one where the marriage occurred before or without deportation proceedings being initiated and one where the marriage occurred after?
For both, there is a burden to show that the marriage is bona fide, but that burden is higher when the marriage occurred after deportation proceedings were initiated. Below is a list of some major differences.
- 485 filing
The first difference is on when you can file the I-485 green card application. If you entered legally and are not in removal proceedings, the I-130 and 485 could be filed simultaneously. Thus you can also file the I-765 work permit application together with it.
If you are placed in removal proceedings and the marriage occurred after, it is the I-130 that is filed first. Then you wait until that finally is approved, in the meantime seeking continuances with the Court while the I-130 is pending.
You cannot file a work permit 765 application while the I-130 is pending in a situation where the marriage occurred after deportation proceedings are initiated, because you still could not file the I-485. I-765s in these cases are approvable based on a pending I-485.
Once the I-130 is approved, you then can either seek termination of the case and then file the 485 green card application and 765 work permit application simultaneously with CIS once the case is terminated, or, should you seek adjustment with the Court, file the adjustment of status application with Court and file the work permit application with CIS.
- Bona Fide Marriage Exception Letter
As a primer, I-130s are not approvable when the marriage occurs after removal proceedings are initiated BUT they can be if a bona fide marriage exception letter is included plus proof of a bona fide marriage.
This is very important.
I have seen cases where couple would consult after an I-130 denial where an officer denied a seemingly bona fide marriage (some with kids even) simply because that one page letter was not included.
- Higher chance of Separation at Interview
There is also a higher chance that the couple would be separated at the interview. InNew York they undergo what’s called the Stokes interview. More questions are typically asked, and the interviews generally are longer. They would ask one person questions in private first, then ask the spouse separately, before checking if the answers match.
- More (evidence, time)
There is also “more” of a bunch of stuff.
More evidence is needed, so I ask for more joint documents, a lease, more affidavits, more pictures, more joint bank statements etc.
More interview questions are usually asked. More time is involved because the I-130 and I-485 are not filed simultaneously.
Ultimately though, if the marriage is bona fide, there should not be any reason why these I-130s can’t be approved. But again, it depends on how you prepare for the filing, and on how you prepare for the interview.
That said, it’s very important to have as much evidence as possible, and to be as prepared as possible to answer questions about your relationship.
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