Who May Not File Form I-130?

Updated: Aug 23, 2019

You may NOT file Form I-130 for a person in the following categories:

1. An adoptive parent or adopted child, if the adoption took place after the child turned 16 years of age, or if the child has not been in the legal custody and has not lived with the parents for at least 2 years before filing the petition;

2. A natural parent, if you gained lawful permanent resident status or U.S. citizenship through adoption or as a special immigrant juvenile;

3. A stepparent or stepchild, if the marriage that created the relationship took place after the child turned 18 years of age;

4. A spouse, if you and your spouse were not both physically present at the marriage ceremony, unless the marriage was consummated;

5. A spouse, if you gained lawful permanent resident status through a prior marriage to a U.S. citizen or lawful permanent resident, unless:

  • You are now a naturalized U.S. citizen;

  • You have been a lawful permanent resident for at least five years;

  • You can establish by clear and convincing evidence that you did not enter the prior marriage (through which you gained your lawful permanent resident status) in order to evade any U.S. immigration law; or

  • Your prior marriage through which you gained your immigrant status was terminated by the death of your former spouse;

6. A spouse, if you married your spouse while he or she was the subject of an exclusion, deportation, removal, or rescission proceeding regarding his or her right to be admitted into or to remain in the United States, or while a decision in any of these proceedings was before any court on judicial review. However, you may be eligible for the bona fide marriage exemption under INA section 245(e)(3) if:

  • You request in writing a bona fide marriage exemption and prove by clear and convincing evidence that the marriage is legally valid where it took place and that you and your spouse married in good faith and not for the purpose of obtaining lawful permanent resident status for your spouse and that no fee or any other consideration (other than appropriate attorney fees) was given to you for your filing of this petition. The request must be submitted with Form I-130; or

  • Your spouse has lived outside the United States, after the marriage, for a period of at least two years;

7. Any person, if USCIS determines that he or she entered into or attempted or conspired to enter into a marriage in order to evade U.S. immigration laws; and

8. A grandparent, grandchild, nephew, niece, uncle, aunt, cousin, or parent-in-law

CR: https://www.uscis.gov/i-130



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