Do you ever file your I-130 separately from your I-45? Hi, I’m Jim Hacking, immigration lawyer, practicing 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 US citizen or green card holding sponsor and the I-45 together. The 45 is the application to adjust status. You’re also going to want to include your I-131, which is your advanced parole document and your I-765, which is your work authorization. Probably also, want to include your I-864, the Affidavit of Support.
But 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’s two main reasons or two main scenarios where this comes up. The first is where the beneficiary that as the foreign national is in removal proceedings. So, if they’re in removal proceedings, that means that USCIS, where you would normally file your I-45, does not have jurisdiction to adjudicate, to 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. And the only way that you can get your green card at that stage would be to either get it through the court or determinate proceedings.
So, the way that it works is you file the I-130 petition and you 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, then you take your I-130 approval notice and you file it with the court and you make a motion to terminate proceedings. So, 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 US citizen, this case has been approved. So, let’s go ahead and terminate proceedings so that they can adjust their status with USCIS.” And given the long and heavy court backlog that we find in immigration court, the judges these days are interested and willing to go ahead and terminate proceeding so that you can adjust your status. So, once proceedings are terminated, then you can file your 45.
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, 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-45. The other time where we see an I-130 filed separately from an I-45 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. It’s 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. So, those are the two reasons why you would file an I-130 separately from an I-45. If the I-130 is approved, then you can file for your I-45 if you’re married to a green card holder, or actually, you can even apply once the priority date becomes current.
And there’s a lot of activity associated with filing an I-130 separately from an I-45. 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.
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