Unfortunately, the sad reality of marriage is that statistically, many will end in divorce. Things get even more complicated when a US Citizen or Lawful Permanent Resident has filed an application for someone’s permanent residence but then no longer wishes to pursue the application due to a breakdown in the marital relationship. What can the Petitioner-the US Citizen or Lawful Permanent Resident–do to stop the process? While I in no way advocate doing so, I also recognize and realize that this is a very common question-and sometimes, a necessary step that must be taken. So, the answer is: It depends on what stage the case is at.
If the I-130 is pending with USCIS, the petitioner can usually submit a signed, notarized letter to the location where the case is pending advising that he/she wishes to withdraw the I-130.
If the I-130 has already been approved and the matter is pending with the National Visa Center (NVC), the petitioner should, as above, notify NVC, that he/she wishes to withdraw the underlying petition.
If the I-130 has already been approved, and the case has moved from the National Visa Center to the US consulate, then correspondence must be made to the US consulate where the interview will be scheduled. Obviously, the petitioner should notify the consulate before the interview is scheduled that he/she wishes to withdraw the petition. Notification should be made just as in the previous two steps, by way of written letter signed and notarized.
The same steps would apply in the case of someone who wishes to withdraw a fiancé petition, although notification would either be made to USCIS or the consulate if the case has migrated over there (fiancé petitions are not coordinated and processed by the National Visa Center, as are consular immigrant visa marriage based cases).
So, as is evident, the actual procedure to withdraw the petition is actually quite easy. Perhaps the more important question is, “Should I withdraw the petition?” This should definitely be pondered over because the consequences are serious. Once the petition is withdrawn or canceled, the case is for all practical purposes over. If the petitioner changes his/her mind, it will not be so easy to resurrect the case. A new petition will most likely have to be filed, resulting in more delay since the case will have to start over from the beginning. Therefore, couples who are having relationship or marital disputes during the pendency of the case must think twice before taking legal action on the case. Just as couples who are having problems should not, under most circumstances, be rushing to file for divorce, neither should immigration petitions be taken likely. Since fiancé and marriage cases that go to the consulate take many months, it is always advisable for spouses or fiancés who have a spat to undergo a waiting or “cooling off” period before the petitioner decides to take things further. Since the case will most likely be pending anyway, unless an interview is imminent, the couple will most likely have enough time to iron out and resolve their problems. The last thing a reconciled couple would want to learn is that the case has been canceled, and even though the petitioner’s request to cancel or withdraw the petition was a mistake made out of haste and emotion, a new petition with a new filing fee, currently $535, will have to filed. The $535 is just for I-130 filing fee. The immigrant visa fee and affidavit of support fee, even if paid previously, may also have to be paid anew by the petitioner. So, withdrawing a petition should only be exercised only after the petitioner has definitely made up his/her mind and understands the legal consequences.
Also, the foregoing assumes that the Petitioner is in the process of applying for his/her spouse’s permanent residence. If the foreign national spouse has already been granted permanent residence, then for all practical purposes, the petitioner will not be able to withdraw or cancel the I-130. If the spouse has a conditional green card, however, the immigrant will usually be expected to file to remove the conditions on his/her residence ninety days prior to the second anniversary of the grant of permanent residence. So, if the US Citizen/Lawful Permanent Resident does not join in the petition, it may problematic for the foreign spouse to obtain a permanent green card (there are exceptions, of course). If the immigrant spouse has already been granted permanent residence without conditions, the petitioner will not be able to “cancel” the grant.
We hope that you have enjoyed this article and learned at least one new thing or tip that you may not have known. To keep informed about the latest developments in immigration law, please subscribe to our blog feed by clicking on the “Subscribe To This Blog’s Feed” button on the right. It is important to understand that the above is only general information. The law is extremely fact and circumstance sensitive. For an individual legal analysis of your specific legal case, please complete the “Case Evaluation” box to the right of the screen to get in touch with one of our attorneys.