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September 27, 2010: Is This I-130 Petition Still Valid?

Is This I-130 Petition Still Valid?

I have an approved petition filed on November 13, 1987 as an unmarried son over 21 years old filed by my mother who became a U.S. citizen in 1991.

For whatever reason, she didn’t update my status when I got married in 1989. What happened to this petition? Is there any chance I can use this petition to immigrate to the USA?
— Anonymous

Your mother’s I-130 visa petition on your behalf classified you as an unmarried son of a lawful permanent resident (FB2B). If you were still unmarried when your mother became a U.S. citizen in 1991, your classification would have been changed to an unmarried son of a United States citizen (FB1). However, your 1989 marriage occurred before your mother became a United States citizen, effectively classifying you as a married son of a lawful permanent resident.

Unfortunately, there is no preference category for a married son of a lawful permanent resident. Therefore, your marriage effectively voided the I-130 petition that your mother filed on your behalf and it cannot be used. For argument sake only, if your marriage occurred after your mother became a U.S. citizen, your preference category would have gone from FB1 to FB3 (married son of a U.S. citizen) and you would be able to immigrate under that petition.

In conclusion, you cannot immigrate using this I-130 petition. However, you may be able to use the petition for grandfathering purposes under section 245(i) of the Act if you require that law for adjustment of status purposes. It may be wise for you to consult with an experienced immigration attorney to review your immigration history and see if you are eligible for an immigration benefit.

Michael Shane and Evan Shane, Immigration Attorneys

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