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Should I refile the I-130 petition for my husband?

Astoria, NY |

Our I-130 was approved on 12/2007 & because my spouse entered the US without inspection we were supposed to get the Visa in our country of citizenship. Out of fear of being banned 10 yrs for entering illegally, we ignored the notice because we were unable to apply for the visa in the US without leaving its borders. Now the NVCV sent us a "notice of termination of registration" The letter says (as a result our application for a visa his canceled & any approved petition approved has also been canceled) We were hoping for amnesty to pass. What if any actions should we take?

Attorney Answers 3


Nothing you can really do here.

When the I-130 was approved, notification was sent to NVC so that they could start working with you on the consular process. If they don't hear from you for over a year, they terminate the case in their system and send it back to USCIS for revocation.

If anything ever passes either allowing your spouse to get a green card here without leaving OR removing the reentry bar so the spouse can safely process abroad, you would file a new I-130 and start again.

You might want to have an attorney evaluate whether a waiver of the reentry bar might be available if your spouse were to process abroad - slim chance, but anything is possible.

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If a year passes without the NVC hearing anything from you, they will notify USCIS to revoke the I-130. You should try to communicate with the NVC that you wish to continue processing your husband's petition to prevent termination. If not, you will have to re-file the I-130 and your husband will have to file for his immigrant visa at a U.S. Consulate abroad with a waiver for his unlawful presence. The waiver must demonstrate that a U.S. Citizen/Lawful Permanent Resident spouse or parent would suffer extreme hardship if he was not allowed to return to the United States. Please feel free to contact me to discuss this matter further.
Seeta L. Nangia, Esq.
Law Offices of Seeta Nangia
Exclusively Practicing Immigration Law
Phone: (415) 273-9123

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You can request NVC to reinstate the petition. If denied, you will have to reapply. Like many other people, you are waiting for the law to change. This may take a short time or many years. If your situation involves extreme hardship to you if your spouse was to be found inadmissible for 10 years, or extreme hardship to you if you were to live in your spouse's country during the period of her inadmissibility, your spouse may be eligible for a waiver.

Find an attorney who does waivers near you to listen to the details of your situation in order to asses whether your spouse is eligible for a waiver.
Good luck.

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