Factsheet:

Form I-730, Refugee/Asylee Relative Petition

Form I-130, Petition for Alien Relative

Affidavit of Relationship, Form DS 7656

What are the differences between the I-730, I-130, and DS-7656 (Affidavit of Relationship)?

I-730 / I-130 / DS-7656
What are the legal citations? / INA §207(c)(2), INA §208(b)(3)(A)
8 CFR § 207.7
8 CFR §208.21 / INA §203(a)
INA §201(b)(2)(A)(i) / INA §207(a),(e)
76 Federal Register 70804 (Nov. 15, 2011)
Who files the form? / Refugee, asylee, or LPR who was a refugee or asylee / LPR or US citizen / Refugee within 5 years of admission; Asylee within 5 years of grant of asylum status
Who benefits from the petition or affidavit? / Spouse, unmarried children under 21 years old / LPR Petitioner – spouse, unmarried children
US citizen petitioner – spouse, married and unmarried children, parents, siblings / Spouse, unmarried children under 21 years old, parents (These are known as qualifying family members)
Who can be derivative beneficiaries? / No derivatives permitted / All preference categories have spouse and unmarried children under 21 as derivative beneficiaries[1] / Spouse and unmarried children under 21 of qualifying family members, and in special circumstances add-ons[2]
What benefit is derived? / Derivate refugee or derivative asylee / Approved petition could lead to Lawful Permanent Residence / Access to the USRAP (opportunity to interview before the USRAP)
What are the limitations? / Two year filing limit is a burden, only principal refugee or asylee can file / May take several years to obtain LPR status, public charge ground of inadmissibility applies / Only for certain nationalities, only provides access to USRAP, DNA testing, can only be completed by a resettlement agency
What happens after petition or affidavit is approved? / The beneficiary appears before either a USCIS officer or consular officer for an interview to verify relationship to petitioner and to prove admissible to US / The petitioner completes an affidavit of support, the beneficiary completes a medical exam and immigrant visa or adjustment application, providesdocuments, and interviews with a consular office or USCIS officer to prove relationship and admissibility / The qualified family member and add-ons appear before USCIS to prove that they are a refugee

What are considerations a legal representative should make when advising on whether to file an I-730, an I-130, or an AOR?

Timeframe Limitation – AORs and I-730s have a time limit within which they must be filed. AORs must be filed within 5 years of refugee admission or asylum grant. I-730s must be filed within 2 years of refugee admission or asylum grant and may be filed outside of this deadline for humanitarian reasons. USCIS will make a determination if an exception should be allowed on a case-by-case basis. Legal representatives should inquire into the reasons why a refugee or asylee client did not file an I-730 within the 2 year deadline.

Beneficiary – Consider who the refugee or asylee would like to immigrate to the US and think about all immigration options. For example a refugee or asylee’s sibling could immigrate to the US on an I-130 if the refugee or asylee becomes a US citizen. The sibling may also be able to immigrate as a derivative of an AOR where her parent is the qualifying family member. However, an I-730 would not be an immigration avenue for a refugee or asylee sibling.

Petitioner – The status of the petitioning refugee or asylee will affect the type form that is filed. Keep in mind only a principal refugee or asylee can file an I-730, while any refugee or asylee whether principal, derivative, LPR, or citizen can file an AOR.[3] LPRs and US citizens can file I-130s.

Processing Timeframe – An I-730, I-130, and AOR all have different processing timelines. It mostly likely will be quicker for an immediate relative to obtain a green card through an I-130 than becoming a refugee through an AOR, but consider an immigrant in the preference categories where it may take over 20 years to obtain a green card. With AORs and I-730s, the overseas elements may pose an issue due to security threats or the post conducting the adjudication. Talk to other practitioners to learn from their experiences regarding overseas processing.

Admissibility – Inadmissibility grounds will be considered for I-730, AOR filings and applications for permanent residence through an I-130, however, not all grounds of inadmissibility apply for I-730s and AORs. Also, I-730 and AOR beneficiaries have more liberal waiver options than those that are available to I-130 beneficiaries. More inadmissibility grounds, including public charge, apply to I-130 beneficiaries.

Fees – Fees are an important consideration especially for clients with limited means. There are no filing fees for I-730s and AORs, but for I-130s, there is the filing fee of $420 plus the consular processing fees of $445.[4]

Benefit – The result of each filing will provide a different immigration benefit. With an I-730, the beneficiary will enter the US as either a derivative refugee or a derivative asylee and will not be able to file an I-730 for other relatives. With an AOR, on the other hand, the beneficiary will enter the US as a principal refugee and will be able to file I-730s for other relatives. Both I-730 and AOR beneficiaries will be eligible for certain public benefits. With an I-130, the beneficiary will gain lawful permanent residence through adjustment of status or by obtaining an immigrant visa and be admitted to the U.S. as a permanent resident. LPRs are able to file an I-130 for some other family members, but will in most cases not be eligible for public benefits.

Relationship Creation Date – The date the relationship between the refugee or asylee and beneficiary was created matters for determining whether to file an I-730, I-130, and AOR. For an AOR and I-730, the relationship must have existed on the date the refugee was admitted to the US or the asylee was granted status and must continue to exist. There is an exception for children who were in utero on the date of refugee admission or asylum grant. For an I-130, the relationship must exist at the time of the filing of the application.

[1]Preference Categories where the LPR is the petitioner include: spouses and unmarried children and where a US citizen is the petitioner include: children over 21 years old, married children, and siblings. Immediate relatives of US citizens cannot have derivatives on their petitions. Immediate relatives of US citizens are spouse, unmarried children under 21 years old, and parents.

[2] In special circumstances and on a case-by-case basis individuals may be added on a qualifying family member’s AOR if the add-on: 1. lived in the same household as the QFM in the country of nationality, or, if stateless, last habitual residence; 2. was part of the same economic unit as the QFM in the country of nationality, or, if stateless, last habitual residences, and 3. demonstrates exceptional and compelling humanitarian circumstances that justify inclusion in the QFM’s case. Add-ons must establish they qualify as a refugee in their own right.

[3]It might be a better option for a US citizen to file an I-130 for a relative as opposed to an AOR since the AORs qualifying family members would also be the immediate relatives of a US citizen. With an I-130, the beneficiary would have an immigrant visa immediately available and would not have to meet the definition of refugee.

[4]The immigrant visa fee is $325 and the AOS fee is $120.