Chapter 5 - Adjudication of Family-Based Petitions

A. Petition Review [Reserved]

B. Interviews [Reserved]

C. Derogatory Information [Reserved]

D. Decision

1. Approvals

If the petitioner properly files the petition in accordance with regulations and the form instructions and demonstrates they meet eligibility requirements, then USCIS must approve the petition.^[1] Generally, there is no discretionary analysis as part of the adjudication of a family-based immigrant petition, and USCIS cannot deny these petitions as a matter of discretion.^[2]

The beneficiary’s history or character is also usually not relevant to the adjudication.^[3] However, if during the adjudication the officer encounters grounds of inadmissibility that are relevant for adjustment of status or consular processing, the officer should document the specific grounds or factors for USCIS or the U.S. Department of State (DOS) to review during the beneficiary’s application for adjustment of status or an immigrant visa.

USCIS approves a Petition for Alien Relative (Form I-130)^[4] if the petitioner establishes that they are a U.S. citizen, U.S. national or lawful permanent resident (LPR) and a qualifying relationship exists between the petitioner and the beneficiary.

A beneficiary may apply to immigrate to the United States and become an LPR if there is an available visa^[5] and they are the beneficiary of an approved Form I-130 or an approved Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360).^[6]

Notice of Approval

USCIS notifies the petitioner of the approval on a Notice of Action (Form I-797).^[7] The approval notice generally acknowledges the petitioner’s declaration regarding the beneficiary’s intent to immigrate to the United States through consular processing with DOS or to adjust status to lawful permanent residence in the United States, if eligible.

When approving the petition, the USCIS officer ensures that the notice accurately reflects the correct priority date, the proper section of law with the beneficiary’s designated immigration classification, and whether USCIS will forward the petition to the DOS National Visa Center (NVC) for consular processing or retain the petition for the beneficiary to seek adjustment of status if eligible.

Correcting Errors in a Notice of Approval

The petitioner may request a corrected notice from USCIS if the approval notice is missing information, such as the correct priority date or the proper section of law with the beneficiary’s designated immigration classification, or has a mistake because of USCIS error.^[8]

If a mistake is related to the beneficiary’s classification or the priority date, the consular officer who is adjudicating the visa application may return the petition for corrective action. Similarly, the USCIS officer adjudicating the adjustment of status application may review the petition for corrective action. This may delay the beneficiary’s immigrant visa processing or adjustment of status.

To prevent these errors and delays, the petitioner should ensure they provide the correct information in the petition and notify USCIS of any changes or corrections needed.

Consular Processing or Adjustment of Status

Generally, if the petitioner indicates the beneficiary intends to adjust status in the United States, and the beneficiary is in the United States and eligible to adjust, USCIS retains the petition for adjustment of status processing.^[9] If the petitioner indicates that the beneficiary intends to consular process, USCIS sends the approved petition to the NVC.^[10] When an immigrant visa becomes available, the NVC forwards the approved petition to the consulate the petitioner or USCIS designated.^[11]

It is important for the petitioner to answer the questions completely and accurately on the petition about the beneficiary’s location and whether the beneficiary intends to adjust status in the United States or consular process with DOS outside of the United States. If applicable, it is also important that the petitioner identify the embassy or consulate where the beneficiary intends to consular process. If the petitioner does not provide this information on the petition or does not contact USCIS to update this information prior to final adjudication, further action on the approved petition may be delayed and there may be additional fees.^[12]

If the petitioner leaves the relevant questions on the petition blank or the petitioner selects both the option to consular process and the option to adjust status in the United States on Form I-130,^[13] USCIS exercises discretion to determine whether to send the approved petition to the NVC or retain the petition for adjustment of status processing by reviewing evidence of the beneficiary’s most recent location, including the beneficiary’s physical address on the petition.

USCIS generally retains the approved Form I-130 when:

• The petitioner indicates on the Form I-130 that the beneficiary is in the United States and will apply for adjustment of status in the United States;
• The beneficiary’s physical address on the petition is in the United States and the petitioner indicates both adjustment of status and consular processing on the Form I-130;
• The beneficiary’s physical address on the petition is in the United States and the petitioner indicates neither adjustment of status nor consular processing on the Form I-130; or
• The beneficiary filed an Application to Register Permanent Residence or Adjust Status (Form I-485) and the beneficiary’s physical address on the petition is in the United States.

USCIS generally sends the approved Form I-130 to the NVC when:

• The petitioner indicates on the Form I-130 that the beneficiary will not apply for adjustment of status and will apply for an immigrant visa through consular processing on the Form I-130;^[14]
• The beneficiary’s physical address on the petition is outside the United States and the petitioner indicates both adjustment of status and consular processing on the Form I-130; or
• The beneficiary’s physical address on the petition is outside the United States and the petitioner indicates neither adjustment of status nor consular processing on the Form I-130.

Prior to final adjudication of the petition, the petitioner may provide updates on the petition, including whether the beneficiary intends to adjust status or consular process, the preferred embassy or consulate for visa processing, and the beneficiary’s address. To provide updated information on a pending petition, petitioners should contact the office indicated on the Form I-130 receipt notice.^[15]

If USCIS has approved the petition, a petitioner must file an Application for Action on an Approved Application or Petition (Form I-824) with a fee, if applicable,^[16] to change from adjustment of status to consular processing, or update the preferred embassy or consulate.^[17] If the petitioner seeks to change from consular processing to adjustment of status, USCIS works with the NVC to return the petition for adjustment of status processing.

2. Denials

Generally, USCIS may only deny a family-based immigrant visa petition if the petitioner fails to establish status as a U.S. citizen, U.S. national, or LPR, or the petitioner fails to establish a qualifying relationship to the beneficiary.^[18]

USCIS may deny without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) if there is no legal basis for approval and no additional information could establish a legal basis for approval (for example, a petition submitted on behalf of a relative who does not fall under a category provided for in the Immigration and Nationality Act, such as a grandparent).^[19]

If USCIS denies a petition, USCIS explains in writing the specific reasons for the denial, and the right to appeal if applicable.

3. Requests for Evidence and Notices of Intent to Deny

When USCIS determines that the evidence is not sufficient to establish eligibility, the officer should generally first issue an RFE or NOID to request evidence of eligibility.^[20]

E. Post Decision Actions [Reserved]

Footnotes

[^ 1] In this section, petition refers to the Petition for Alien Relative (Form I-130) and the Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360), where a noncitizen filed Form I-360 as a self-petitioner seeking to immigrate as an abused spouse, child, or parent; as an Amerasian; or as a widow or widower of a U.S. citizen. See Volume 3, Humanitarian Protection and Parole, Part D, Violence Against Women Act [3 USCIS-PM D]. See Volume 7, Adjustment of Status, Part P, Other Adjustment Programs, Chapter 9, Amerasian Immigrants [7 USCIS-PM P.9]. See the USCIS Widower webpage. As used in this section, the term beneficiary may also refer to these Form I-360 self-petitioners.

[^ 2] See INA 204(b). If the petitioner establishes the claimed relationship with the beneficiary, USCIS does not have discretion to deny the petition, unless the petition is subject to the Adam Walsh Act or is subject to relief under INA 204(l).

[^ 3] See Matter of O– (PDF), 8 I&N Dec. 295 (BIA 1959) (admissibility of beneficiary is not relevant to decision of visa petition). However, if the beneficiary previously entered into a marriage for the purpose of evading immigration laws, such conduct would be relevant to the adjudication of the petition. See INA 204(c).

[^ 4] For information on Form I-360 approvals where the applicant filed Form I-360 as a self-petitioner seeking to immigrate as an abused spouse, child, or parent; as an Amerasian; or as a widow or widower of a U.S. citizen, see Volume 3, Humanitarian Protection and Parole, Part D, Violence Against Women Act, Chapter 5, Adjudication, Section C, Decision, Subsection 2, Approvals [3 USCIS-PM D.5(C)(2)]. See Volume 7, Adjustment of Status, Part P, Other Adjustment Programs, Chapter 9, Amerasian Immigrants, Section D, Petition for Amerasian, Subsection 3, Decision [7 USCIS-PM P.9(D)(3)]. See the USCIS Widower webpage.

[^ 5] See the USCIS Visa Availability and Priority Dates webpage.

[^ 6] For information on additional requirements following the approval of a family-based immigrant visa petition, see the USCIS Consular Processing webpage and USCIS Adjustment of Status webpage.

[^ 7] See 8 CFR 103.2(b)(19) and 8 CFR 204.2.

[^ 8] For additional information, see the Form I-130 webpage.

[^ 9] See 8 CFR 204.2(a)(3), 8 CFR 204.2(b)(3), 8 CFR 204.2(c)(3), 8 CFR 204.2(e)(3), 8 CFR 204.2(f)(3), and 8 CFR 204.2(g)(3).

[^ 10] See 8 CFR 204.2(a)(3), 8 CFR 204.2(b)(3), 8 CFR 204.2(c)(3), 8 CFR 204.2(e)(3), 8 CFR 204.2(f)(3), and 8 CFR 204.2(g)(3).

[^ 11] For additional information on NVC visa processing see step two of the DOS’s Immigrant Visa Process webpage.

[^ 12] For additional information about requesting action on an approved petition, see the USCIS Form I-824 webpage.

[^ 13] Form I-360 does not contain the option to select either consular processing or to adjust status in the United States. However, the form does ask for information about the U.S. consulate at which the self-petitioner prefers to apply for an immigrant visa if they are outside the United States, ineligible to adjust status in the United States, or they do not wish to adjust status. If the self-petitioner provides the U.S. consulate information, or fails to provide the information but provides an address outside the United States, USCIS forwards the Form I-360 to the NVC. Otherwise, USCIS retains the Form I-360.

[^ 14] See the DOS’s Visa Issuing Posts webpage. If the consulate designated on the petition does not issue immigrant visas, officers may use the beneficiary’s country of birth as indicated on the petition. If the beneficiary is unable to return to the country of birth or if a U.S. consulate is not present in the beneficiary's country of birth, the petitioner may request another U.S. consulate through the first designated consulate. If the new consulate accepts jurisdiction, officers annotate the petition accordingly before forwarding the petition to the NVC.

[^ 15] See the Form I-130 webpage for additional instructions on how to contact USCIS to provide updated information on a pending petition.

[^ 16] Certain individuals may be eligible for a fee exemption. For information on fees, see the Fee Schedule (Form G-1055).

[^ 17] See 8 CFR 103.9. See Form I-824.

[^ 18] See INA 204(b). See 8 CFR 204.2.

[^ 19] See Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 6, Evidence, Section F, Requests for Evidence and Notices of Intent to Deny [1 USCIS-PM E.6(F)].

[^ 20] See Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 6, Evidence, Section F, Requests for Evidence and Notices of Intent to Deny [1 USCIS-PM E.6(F)].