Can I apply for I 485?

[pdsmn 0]

Hi. My wife has petitioned I-130 for me as a permanent resident. The I-130 application was received in February 2010, however I have not yet received an I-130 approval notice. The visa bulletin shows that category F2A is current. Can I apply for adjustment of status and send I-485 documents? Thanks a lot.

[aleful 1,905]

Hi. My wife has petitioned I-130 for me as a permanent resident. The I-130 application was received in February 2010, however I have not yet received an I-130 approval notice. The visa bulletin shows that category F2A is current. Can I apply for adjustment of status and send I-485 documents? Thanks a lot.

what is your priority date and are you in the US? If you are in the US, when did you come?

we need more information.

[pdsmn 0]

what is your priority date and are you in the US? If you are in the US, when did you come?

we need more information.

My I130 is filled under family 2A category, as my wife is GC holder. My priority date is 11th Feb,2010. From 2007 I am in US on F1 visa. Right now I am on OPT. So I have EAD till January,2011. US visa bulletin (for October) shows that for family 2A category is current (till April 2010).

The problem is that I have still not received I130 approval notice from USCIS. My file is in California Service Center, which shows date of July 2009 for I130 processing.

Hope this would help you.

Thanks for your time and efforts.

[Dakine10 5,452]

My I130 is filled under family 2A category, as my wife is GC holder. My priority date is 11th Feb,2010. From 2007 I am in US on F1 visa. Right now I am on OPT. So I have EAD till January,2011. US visa bulletin (for October) shows that for family 2A category is current (till April 2010).

The problem is that I have still not received I130 approval notice from USCIS. My file is in California Service Center, which shows date of July 2009 for I130 processing.

Hope this would help you.

Thanks for your time and efforts.

You can file the AOS when your priority date becomes current. Septembers F2A is Jan 2010 and Octobers is April 2010. If you don't have the I-130 approval notice you can use the I-130 receipt notice. If you file before the priority date becomes current, they will reject the AOS so you may want to wait until OCT to be on the safe side.

Edited September 11, 2010 by Dakine10

[JimVaPhuong 4,863]

You can file the AOS when your priority date becomes current. Septembers F2A is Jan 2010 and Octobers is April 2010. If you don't have the I-130 approval notice you can use the I-130 receipt notice. If you file before the priority date becomes current, they will reject the AOS so you may want to wait until OCT to be on the safe side.

Are you sure this is correct? An I-485 can only be accepted if an immigrant visa number is immediately available based on an approved immigrant visa petition, or it's being filed concurrently with an immigrant visa petition that, if approved, would make an immigrant visa number immediately available, such as an IR/CR category petition. All immigrant visa categories for LPR petitioners are subject to annual limits, so none would automatically make an immigrant visa immediately available if approved, which rules out concurrent filing.

What you're suggesting is a hybrid - an I-485 that's not filed concurrently and not filed based on an approved immigrant visa petition, but based on the fact that an immigrant visa number would be immediately available if the immigrant visa petition is ultimately approved simply because USCIS has taken so long to adjudicate the immigrant visa petition that the priority date has become current. This seems like it's mixing the rules between concurrent and non-concurrent filings. We've seen I-485's denied to spouses of US citizens because they filed it after the I-130 was filed but before the I-130 was approved. Why would it be different for the spouse of an LPR?

[Dakine10 5,452]

Are you sure this is correct? An I-485 can only be accepted if an immigrant visa number is immediately available based on an approved immigrant visa petition, or it's being filed concurrently with an immigrant visa petition that, if approved, would make an immigrant visa number immediately available, such as an IR/CR category petition. All immigrant visa categories for LPR petitioners are subject to annual limits, so none would automatically make an immigrant visa immediately available if approved, which rules out concurrent filing.

What you're suggesting is a hybrid - an I-485 that's not filed concurrently and not filed based on an approved immigrant visa petition, but based on the fact that an immigrant visa number would be immediately available if the immigrant visa petition is ultimately approved simply because USCIS has taken so long to adjudicate the immigrant visa petition that the priority date has become current. This seems like it's mixing the rules between concurrent and non-concurrent filings. We've seen I-485's denied to spouses of US citizens because they filed it after the I-130 was filed but before the I-130 was approved. Why would it be different for the spouse of an LPR?

A beneficiary of I-130 petition is able to file the I-485 while the I-130 is pending as long as a visa is immediately available at the time of filing. This is based on section 245.1(a) and 245.1© of 8.CFR.

Attorneys on several immigration sites such as Murthy's and Ron Gotcher advise this is possible even though not stated in the I-485 filing instructions based on a memo that was issued in 2004 by William Yates instructing that an I-485 filed while the I-130 is pending should be matched (based on the receipt notice) so that both forms can adjudicated.

There have been posts in the past from people who have filed the I-485 with the I-130 receipt notice and it was accepted.

[VanessaTony 3,567]

** moved from "Adjustment of Status (Green Card) from Family Based Visas" to "Adjustment of Status from Work, Student, & Tourist Visas" as you are adjusting from a visa other than a K1, K2, K3 & K4 which the prior forum is for**

[Dakine10 5,452]

** moved from "Adjustment of Status (Green Card) from Family Based Visas" to "Adjustment of Status from Work, Student, & Tourist Visas" as you are adjusting from a visa other than a K1, K2, K3 & K4 which the prior forum is for**

The OP is applying as a spouse of a permanent resident - F2A family sponsored second preference.

[VanessaTony 3,567]

The OP is applying as a spouse of a permanent resident - F2A family sponsored second preference.

And?? The OP did not arrive on a family VISA. Please do not confuse the terms "family based adjustment of status" with "AOS from a family based VISA". A family based VISA is a K visa which is what the previous forum is for (please read the previous forum title more carefully, you will see it says "from a family based VISA"). The OP is AOSing from an F1 visa, NOT a family-based visa.

Edited September 12, 2010 by Vanessa&Tony

[Dakine10 5,452]

And?? The OP did not arrive on a family VISA. Please do not confuse the terms "family based adjustment of status" with "AOS from a family based VISA". A family based VISA is a K visa which is what the previous forum is for (please read the previous forum title more carefully, you will see it says "from a family based VISA"). The OP is AOSing from an F1 visa, NOT a family-based visa.

OK. Didn't see F1. Don't need to go off the deep end!

[VanessaTony 3,567]

OK. Didn't see F1. Don't need to go off the deep end!

I didn't "go off the deep end", I simply explained, in detail, why I did what I did. Your confusion is common and I therefore felt it required a complete and thorough explanation to try and limit the confusion for others. It's one of the reasons a forum name change has been requested SEVERAL times for the "AOS from family based visa" forum.

[Dakine10 5,452]

I didn't "go off the deep end", I simply explained, in detail, why I did what I did.

To be honest, I was referring to the "And??". Excessive punctuation is known to rub people the wrong way. I admit your explanation was exemplary, and yet for some reason my post was influenced most by that tiny sentence fragment turned into a double question.