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Does Filing More Than One Visa Petition Help Or Harm Immigrants?

QUESTIONS AND ANSWERS

My Aunt Filed An Immigrant Petition For My Mother Long Ago.
Can My U.S. Citizen Brother File A New I-130 For Her?

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Question:

“My brother born in the U.S. is about to turn 21. He wants to file immigrant petitions for me and my mother. But my aunt already filed papers for my mother to get a visa eight years ago. We were told she has to wait about 10 more years. One person informed my brother that my mother cannot file multiple petitions. Another friend said he can file for her and it will help her case go faster. We’re confused. Can my brother help her or not?”

(Submitted by Kathleen I., Colton, CA)

Answer:

When your brother becomes 21, he can file a new petition for your mother. She does not have to choose between them. It does not matter if she has another petition, filed by a different relative, already pending. They do not cancel each other out.

An immigrant can have multiple petitions filed for them. In fact, it is often a smart move to have different relatives file visa petitions to immigrate the same person.

Why?

There are a few reasons.

How Multiple Immigrant Petitions Help Immigrants

First, a petitioner could pass away.

Say your mother’s sister is very old. As a general rule, your aunt’s death will terminate the petition.

If that happens, your mother can seek humanitarian reinstatement. These requests are not always granted. If your mother has a second petition, filed by a different family member, then she can keep moving forward to a green card.

Second, speed.

Some immigrant petitions move faster to a green card. The speed is dictated, in part, by the family relationship.

For example, let’s assume the first visa petition was filed by a lawful permanent resident relative, and the second by a U.S. citizen. Because visa petitions move quicker for U.S. citizen, the second petition would probably speed up the permanent residency process.

Then there are circumstances like your mother’s case. Different I-130 immigrant petitions are filed by two different citizens, one a sibling and the other a son.

Petitions filed by U.S. sons and daughters for their parents move far faster than petitions filed by U.S. brothers and sisters for their siblings. Your brother’s paperwork will move much faster than your aunt’s paperwork.

Yet, simply because an immigrant can move forward sooner does not mean it is in his best interests to do so.

Here’s why.

Multiple Immigrant Visa Petitions And Family Unity Waivers

If an immigrant has been living in the U.S. without permission, he may have to return home for his green card interview. Depending on how long he has lived here, he will need to file for a family unity waiver. The waiver, if approved, will allow him to re-enter the U.S.

Not all family relationships are the same when it comes to immigrant petitions. Some do not qualify for such waivers.

Winning such waivers, even when an immigrant is eligible, is a tough process. As a result, for some immigrants in this situation, waiting for immigration reform may be the better course of action.

Let’s apply this concern to your mother’s case.

Since you did not mention if your mother entered the country with or without permission, I will briefly discuss why filing a second visa petition by your brother may be beneficial to her in both scenarios.

We’ll start with the green card process if she entered without legal authorization.

Under immigration law relating to family-based visa petitions, there is a concept known as “immediate relatives.” For certain U.S. citizens who are trying to help immigrant family members:

  • Brothers and sisters are not considered immediate relatives.
  • Parents are considered immediate relatives.

The family unity waivers, also known as I-601 inadmissibility waivers, can only be used when the person who is seeking benefits is an immediate relative.

Under the petition filed by your aunt, because your mother does not qualify as her sister’s immediate relative, your mother cannot seek a family unity waiver.

On the other hand, a child-parent relationship is an immediate relative relationship. If your brother files for your mother, she does qualify to seek a waiver to re-enter the U.S. after the interview in her home country.

Now, let’s look at what happens if your mother entered the country legally but never left.

Under the petition filed by her sister, the situation remains the same. Because your mother overstayed her legal visit, your mother is still unable to apply for a green card and attend an interview here. She is not an immediate relative. Your mother must go home for her interview via consular processing, unless she meets certain other requirements.

Using the petition filed by your brother changes your mother’s legal posture in a positive way. Because her last entry was legal, and she is his immediate relative, she can attend her green card interview in the U.S.

To be clear, this short answer only touches the tip of the iceberg if your mother plans to pursue becoming a lawful resident. There are many other issues. Don’t take unnecessary risks.

Before filing a new petition, I encourage your family to discuss the full gamut of possible issues with a qualified immigration lawyer.

By Carlos A. Batara

(Filed Under Q&As: Family-Based Visas And Immigrant Petitions)

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