Hedging your bets? Filing different family immigrant visas at the same time

It is possible to have more than one type of Immigrant Visa petition filed by a family member for the same person pending at the same time. Huh, you say? The filing of one immigrant visa petition does not invalidate or stop the other from being processed by USCIS assuming it's not the same type of immigrant visa petition filed by the same family member (i.e., you can't have one I-130 filed by your spouse and then file another one from the same spouse while the other is still pending or hasn't been terminated by USCIS or the National Visa Center (US Dept of State) due to failure to respond to NVC documentation requests). But you may be able to file an I-130 visa petition by a lawful permanent resident spouse while at the same time have an I-130 filed for the immigrant by their US citizen sister or brother. But why would someone do this? It’s double the fees, double the pain of assembling documentation and just more work.

It all comes down to processing times and that visa bulletin backlog of visa numbers that can fluctuate widely depending on what category your immigrant visa petition falls into.  For example:

As a US citizen, you may want to sponsor your parent for an Immigrant Visa. Five years ago, your uncle, also a US citizen, may have filed an Immigrant visa petition for your parent, your uncle’s sister.  Even if the uncle’s Immigrant Visa petition was approved, it may be faster to apply for your mom on a separate Immigrant Visa petition based on your parent-child relationship now that you are a US citizen, since parents of US citizens are not subject to the visa bulletin’s waiting periods for available visa numbers.

But another consideration is your parent’s immigration history and visa entries. If your mother has been in the US on an expired visitor’s visa for any period of time, she is ineligible to apply for a green card in the US based on your uncle’s petition because she is not an immediate relative (a parent, child, or spouse of a US citizen) for purposes of that petition, the only type of relative where unlawful presence is forgiven. For example, if your uncle’s Immigrant Visa petition for your mom’s case was now current and she even has a consulate interview scheduled to interview for her green card, it may be better to instead file a separate Immigrant visa case based on your sponsorship, thereby classifying her as an immediate relative so she can apply for adjustment of status in the US and not leave the US.

This is especially crucial if she has overstayed her visitor’s visa I-94 authorized stay by 1 year or longer and then leaves the US; by leaving the US, she would trigger the 10 year bar and may be stuck outside the US without a qualifying relative for the waiver (US citizen children are not qualifying relatives for the 10 year bar waiver!).  This example shows that processing speed is not always the most important priority in assessing which Immigrant Visa petition is the right one in any particular circumstances. 

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