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Can the Priority Date From a Previously Denied I-130 Petition, Based on Marriage, Ever be Salvaged or Beneficial in Future?

Can the Priority Date From a Previously Denied I-130 Petition, Based on Marriage, Ever be Salvaged or Beneficial in Future?

Posted by: ScottMond Law Firm
January 03, 2012
Topic: Family Law & Immigration

The answer is "Yes". Section 245(i) of the Immigration and Nationality Act (INA) states the following:

You may be eligible to receive a green card through Section 245(i) if you:

  • Are the beneficiary of a qualified immigrant petition (Form I-130 or I-140) or application for labor certification (Form ETA-750) filed on or before April 30, 2001
  • Were physically present in the United States on December 21, 2000, if you are the principal beneficiary and the petition was filed between January 15, 1998, and April 30, 2001
  • Are currently the beneficiary of a qualifying immigrant petition (either the original Form I-130 or I-140 through which you are grandfathered or through a subsequently filed immigrant petition)
  • Have a visa immediately available to you
  • Are admissible to the United States

The above law provision is referred to as "grandfathering", and is a very powerful way for a foreign national to adjust status to a U.S. Permanent Resident as soon as possible.

For instance, if a client (foreign national) had a 2001 I-130 petition filed by her spouse, and it was later denied due to divorce; if she then remarries her husband or a new husband, the priority date of the original I-130 may be considered. This would allow a visa number to possibly be immediately available.

The law is complex in this area and requires an experienced Immigration attorney to evaluate eligibility. However, if the person was divorced and the original marriage was valid, then the fact that the original application was denied does not preclude it from being a grandfathering petition. The grandfathering petition must have been timely, meritorious in fact, and non-frivolous.

A copy of the original denial documents and proof of presence in the U.S. before 2000 filed along with a new petition, may allow a foreign national to adjust status quickly based on the more recent priority date which is controlled by the Visa Bulletin issued by the Department of State.

If you have any questions regarding grandfathering you may contact our law firm at [email protected]. Or our office telephone numbers are conveniently listed at www.scottcclaw.com

ScottMond Law Firm

www.scottcclaw.com

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