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Question #22 on I-130 answered incorrectly, how can I fix after petition has been approved? Husband doesn't qualify for AOS.

Hialeah, FL |

I'm a USC & lawyer told me to file I-130 for husband on my own in March 2012. Received our receipt & interview was scheduled in August 2012. Went to interview & passed. Our approval notice arrived August 28, 2012. Asked our lawyer about next step & was told to wait & do nothing. So, I did for a while. Then in January, couldn't wait anymore, I did some searching & found out that USCIS should have sent the approval notice to NVC days later. Called NVC, no record, sent email w/PDF of approval notice asking they input his info into their system. They're unable to because of pending AOS. Went to USCIS field office to clarify pending AOS, he has none, told he's in limbo because of how he entered, w/o inspection. Checked I-130, Q22 answered wrong. No longer trust lawyer, how can I fix? Thank you.

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Attorney answers 5

Best Answer

You can try filing a form I-821 with USCIS, attaching a copy of the I-130 approval notice. You should include a cover letter explaining that your husband doesn't qualify for AOS and that you would like consular processing to be started by transferring his file to the NVC.

That being said, I highly recommend you consult with a reputable attorney in your area before you do any of this. An attorney will have additional resources to make sure the case gets moving again. It might not be quick, but it's possible.

Also, I agree with my colleague that your husband might qualify for a provisional waiver. Since waivers are complicated and there is a specific order in which things must be done, having an experienced attorney would be best. You can find one using the link below. Good luck!

[This answer is for general purposes only; it does not constitute advice and does not establish an attorney-client relationship.]



Thank you for answering. I looked up form I-824 and that would be the correct form to file.


All you have to do is contact USCIS and ask them to forward the petition approval to the NVC for consular processing. That being said, he may qualify for the new provisional waiver in the US if he's here. Make sure you do a consultation with a qualified attorney before you contact the NVC just to make sure!

For a FREE consultation, call at 305-401-2123. The answer provided is general in nature. Because not all facts are known, it should not be construed as legal advice. The answer does not create an attorney-client relationship.



Thank you Ms. Santana for replying so quickly. I really appreciate that. When I went in to the USCIS field office I requested that they go ahead and forward the petition since there is no pending AOS. I was told by the agent that they couldn't do that. I then requested something in writing, so I could send to NVC as proof that there is no AOS pending. She informed me that they can only provide a verbal statement to that fact and nothing more. She asked that we hold on and spoke to a superior, that's when she came back and told us that there's nothing he can do. She told us neither USCIS nor NVC will be able to help him because of his entry. Our plan was to apply for the provisional waiver since he is here, but without a case with NVC, as you know, he doesn't qualify. I did take it a bit further, I emailed back NVC and explained that USCIS will only provide a verbal statement and requested that they input his info into their system once more. I'm still waiting for a reply.


Don't worry too much. Sooner or later you'll get a letter from USCIS or NVC explaining that your husband doesn't qualify for AOS in the US and that his case (after the I-130 being approved) has been forwarded to the National Visa Center for consular processing abroad, but that you will need to file the extreme hardship,waiver here first, etc.

Your lawyer should have explained all this to you. If you are not happy with his services, then hire another lawyer specializing in waivers.

Behar Intl. Counsel 619.234.5962 Kindly be advised that the answer above is only general in nature cannot be construed as legal advice, given that not enough facts are known. It is your responsibility to retain a lawyer to analyze the facts specific to your particular situation in order to give you specific advice. Specific answers will require cognizance of all pertinent facts about your case. Any answers offered on Avvo are of a general nature only, and are not meant to create an attorney-client relationship.



Thank you for answering. I know I tend to worry too much, it's just that my husband is scheduled for another immigration court date in September. As far as our current lawyer, yes, we are starting to look for someone else. We requested that he withdraw another application from the courts because my husband does not qualify and he did not, just so we have a back up. I'm sorry but I don't agree. We also requested that he ask the judge to give my husband permission to apply for employment when we went to court back in February and nothing. Sadly, this is the second lawyer my husband has had a bad experience with.


You need another lawyer. Sorry to hear about your experience with the current lawyer but lawyers are like everything else, there are good ones and bad ones; in your case I think your assessment is correct that he cannot be trusted. From your description, there are many thing that could be done for your husband.


Definitely consult with an attorney because thanks to the provisional waiver that just became effective this March 2013, your husband maybe eligible to seek a waiver in the US. Because your husband entered the US unlawfully, if he were to return to his country to continue with the consular processing, he's most likely looking at a 10 year bar. The situation can be complicated to understand, try consulting with an attorney that dedicates their practice mainly to immigration.

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