Both I-130 and I-485 are filed with the United States Citizenship and Immigration Services (USCIS). Concurrent filing of these two forms is possible. Learn how in this post.
Do you ever file your I-130 separately from your I-485? Hi, I'm Jim Hacking, an immigration lawyer who practices law throughout the United States at our offices in St. Louis, San Diego, and Washington, DC.
Obviously, most of the time, when someone is filing for adjustment of status based on marriage, they're going to file their I-130 Petition for Alien Relative, which is actually filed by the U.S. citizen or green card holding sponsor, and the I-485 together.
Form I-485 is the application to adjust status. You should also include your I-131, your advanced parole document, and your I-765, your work authorization. You should probably also include your I-864, the Affidavit of Support.
In this post, you’ll learn:
• The reasons why you should file I-130 and I-485 separately
• The filing process
• If it’s possible to terminate proceedings ahead of time
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Table of Contents
In this video, we're talking about, Jim, are there any instances or situations where you would want to file your I-130 first and then your 45? And really, there are two main reasons or two main scenarios where this comes up.
The first is where the beneficiary, as a foreign national, is in removal proceedings. So, if they're in removal proceedings, that means that USCIS, where you would normally fill out your I-485, does not have jurisdiction to adjudicate and decide adjustment of status.
When you're in deportation court, even if your proceedings were administratively closed, the immigration judge retains jurisdiction over you, the foreign national. At that stage, the only way you can get your green card is through court or determinate proceedings.
So the way it works is you file the I-130 petition and ask USCIS because only USCIS can decide whether the marriage is valid. You file that I-130 with USCIS, and then after it's approved, you take your I-130 approval notice, file it with the court, and make a motion to terminate proceedings.
At that stage, you would ask the court and the Office of Chief Counsel, the government's attorneys, "Hey, look, we have this approved I-130. This person is married to a U.S. citizen; this case has been approved. So, let's go ahead and terminate proceedings so that they can adjust their status with USCIS."
Given the long and heavy backlog in immigration court, the judges these days are interested and willing to terminate proceedings so that you can adjust your status. Once proceedings are terminated, you can file your 45.
This form is for U.S. citizens and lawful permanent residents to assist a family member in obtaining lawful permanent resident status. This form shows a family relationship in U.S. immigration laws.
Filing are as follows:
• Complete the form on the USCIS website or submit a printed one. Include birth certificates or a marriage certificate to establish familial relationships.
• Pay the fees online or by mail.
• If you live in the U.S., submit the form directly to the USCIS. Those living abroad should submit it to consular processing.
• USCIS will process the form once an immigrant visa number is available.
This form helps register permanent residence and lets you apply for a green card after getting your Form I-130 approved. A U.S. citizen's immediate relative can file the two forms together. Do it by:
• Completing the form with details on immigration status, biographic info, and eligibility grounds.
• Attaching your immigrant visa number and proof of an approved immigrant petition.
• Pay the filing fee and biometrics fee, if there’s any.
Talk to your immigration lawyer if you have any questions about your immigration visa or if you want any information about getting lawful permanent residence.
Technically, you could file it ahead of time in the hopes that your proceedings will be terminated, but that would be silly, and you wouldn't want to do that. You want to file the I-130 with USCIS and get it approved.
Then once it's approved, go to the immigration court and say, "Hey, judge, could you please terminate proceedings?" And if she is so inclined, she would terminate proceedings, then jurisdiction would be available to USCIS, and then you can go ahead and file for your I-485.
The other time where we see an I-130 filed separately from an I-485 is when the adjustment of status is based on a family relationship, and the visa number isn't current, the priority date is not current.
So, we have just lived through a very unusual time in immigration, and that is that there were as many visas available for the spouses of green card holders as there were demand.
In other words, there were more than enough visas available for the spouses of green card holders for the immediate family members, the children, or the spouses of green card holders.
And historically, there's always been a backlog and a delay. Whenever there's a backlog or a delay, you have to file the I-130 first. And then once the priority date becomes current for adjustment of status, then you can go ahead and apply for the 45.
So, that's how it works. Those are the two reasons why you would file an I-130 separately from an I-485. If the I-130 is approved, then you can file for your I-485 if you're married to a green card holder, or you can even apply once the priority date becomes current.
There's a lot of activity associated with filing an I-130 separately from an I-485. Sometimes when you file the I-130, they think that the foreign national is overseas, and it can take some work to get them to pay attention to the fact that the foreign national is actually in the United States.
So, I would say on a scale of one to 10, this is probably an eight or a nine in complexity, maybe an eight, and you wouldn't want to try this without an attorney for the most part.
So, if you have any questions and need our help, give us a call at 314-325-7978. You can email us at [email protected]. Be sure to join us in our Facebook group, which is called Immigrant Home. If you like this video, we ask that you please share it out on social and subscribe to our YouTube channel so that you get updates whenever we make videos just like this one. Thanks a lot, and have a great day.
