Sometimes a spouse can get angry or make a rash decision such as withdrawing the I-130, Immigrant Visa petition based on marriage, for the immigrant spouse. So what happens when to your immigration case if all is forgiven and you’re back together? 

Once an Immigrant visa is withdrawn, it is denied and there is no way to “reinstate” it. A new Immigrant visa petition or I-130 application with fee must be filed with USCIS. You do not get to skip ahead of other couples in the processing time with the Service Center either because you had an I-130 before.  If you do file a new I-130, remember, this petition remains active at the whim of the petitioning US citizen or LPR spouse; the immigrant can’t stop a withdrawal from happening by their spouse.

Also, your interview will be tougher at any new green card interview based on the new I-130 filing, CIS now curious why the first marriage did not last and whether this one is viable, although legally viability is not a ground for a denial of the petition. But in reality, CIS officers will be skeptical of the couple and will review your joint documentation and reasons for separation closely. Adjustment of Status, the green card application that is usually attached to the I-130, is a discretionary petition, that can be denied by an officer if the officer believes that the immigrant’s actions led to the first withdrawal (cheating on the other spouse, for instance) and unless you can show rehabilitation, the I-130 may still be approved but the immigrant may have to consular process (instead of benefit from adjustment in the US) if the adjustment application is denied based on discretion. Be careful when you re-file an I-130 that you can trust what your spouse is going to say at that subsequent green card interview as to why the case was withdrawn the first time around and whether you can trust your spouse through the process.

Similarly, if you get divorced while your I-130 is pending with USCIS, your I-130 will be denied when CIS discovers the divorce or at the green card interview when CIS is made aware of the divorce when it is disclosed. The I-485  (green card application) and I-765 (work permit) applications will also be denied. CIS won’t grant a marriage-based immigrant visa petition if the parties are divorced.

If you successfully submitted our I-130, paid the Immigration Visa fee, and submitted original documents to NVC including the Affidavit of Support for purposes of consular processing,  but have yet to submit the DS-230 with former spouse information and you were divorced during some part of your immigrant visa processing stage before the consulate interview to decide the Immigrant Visa based on the marriage instead of applying for adjustment of status, your only hope of saving the I-130 is proving that the divorce you obtained was invalid under the state law where you obtained it.

This may be a much more viable argument if you obtained a quickie divorce abroad in a foreign country where you no longer reside and where your spouse no longer resides or have done the same in another state that may not have jurisdiction over your divorce based on residency requirements that may be imposed in that state or your home state that may require you to submit to the jurisdiction of its family code. This is obviously as complicated as it sounds; talk to an experienced divorce attorney in the state or country where you obtained your divorce as well as an experienced divorce attorney in the US state where you regularly reside to determine if you can find a way to invalidate the divorce or provide CIS proof with the state’s non-recognition of the divorce for immigration purposes. Otherwise, you will have to start over with a new I-130 immigrant visa petition, start over with processing times (often up a year once the process is started) at CIS and NVC, and re-pay CIS and Department of State NVC fees.



Get Your Free Guide! Immigration Attorneys & You: How to Choose Between the Right One and Those You Should Run From by Attorney Heather L. Poole

Attorney Heather L. Poole practices exclusively in the area of U.S. family-based immigration law and citizenship law. Heather is a nationally-published immigration author, frequent lecturer on immigration issues, and member & officer of the American Immigration Lawyers Association’s Southern California Chapter. For more information about Heather and the services offered, visit www.humanrightsattorney.com