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

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.

I’ll start with a general overview, then I’ll move into a short discussion about your mother’s situation.

How Multiple Immigrant Petitions Help Immigrants

There are three basic reasons in support of filing multiple immigrant petitions for the same person. (Immigrant petitions are often referred to I-130 petitions.)

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, In A Marriage Green Card Case, A Divorce May Occur

I’m not sure if divorce applies to your mother’s situation because you did not mention your father in the question posed.

In any event, divorce is similar to death in terms of the impact of the immigrant petition.  If a marriage ends by divorce, prior to the government’s approval of the petition, the petition will be terminated.  But even if an immigrant has an approved petition but has not yet been interviewed for permanent residence, the green card application is a moot issue.

Third, Speed To Permanent Residency Status

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.

Even with your aunt’s eight-year head start, your brother’s petition may move to the permanent residency interview stage faster.

Yet, I’ve learned as a family visas lawyer, 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

Since you did not mention if your mother entered the country with or without permission, I will briefly discuss both scenarios.

To begin, let’s look at what happens if your mother entered the country legally with a temporary visa but never left.

A concept known as immediate relatives is important here.

This pertains to what persons can file a immigrant petition for a relative which allows the immigrant to move quickly to the green card interview:

  • Brothers and sisters are not considered a U.S. citizen’s immediate relatives.
  • Parents are considered the immediate relatives of U.S. citizen children over 21

Under the petition filed by her sister, if your mother overstayed her legal visit, your mother will be able to apply for a green card and attend an interview here. However, the wait for her interview date will be much longer, during which time she is subject to being placed in removal proceedings at immigration court.

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, her green card interview will take place much sooner.

This is the speed to permanent residency issue noted above.

Your mother’s green card options are vastly different if she entered without legal authorization.

When an immigrant has been living in the U.S. without permission, he might 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.

Although an immigrant may be eligible to file, winning a family unity waiver is a tough process.

The key is to demonstrate certain relatives – referred to as qualifying relatives – will suffer extreme hardship if the immigrant is not allowed to return to the United States following the green card interview abroad.

The only family members who count as qualifying relatives are:

  • The immigrant’s U.S. citizen or lawful permanent resident spouse
  • The immigrant’s U.S. citizen or lawful permanent resident parents

Applying this requirement to your mother’s case raises serious concerns.

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

Under a petition filed by your brother, because he does not qualify as your mother’s qualifying relative, your mother cannot seek a family unity waiver through him.

To seek a waiver, in other words, she needs to show that one of her parents or her spouse will suffer extreme hardship if she is not allowed to legally re-enter the U.S.

In addition, they need to be U.S. citizens or permanent residents.  This seems unlikely.  I presume they, too, would have filed an immigrant petition for your mother if they had legal status.  As you did not mention them, it appears the waiver option is not viable for your mother to pursue.

If this is your mother’s situation, she is not alone in this regard.  Many immigrants are in a similar predicament and waiting for immigration reform is sometimes their better course of action.

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)