Did you file the I-130 with I-485 while adjusting from K-1?

[EAS 45]

I have read a lot of posts on this site with respect to which forms are needed for Adjustment of Status. What I have found is that most list the following forms:

1. I-485, Application to Register Permanent Residence or Adjust Status
2. I-765, Application For Employment Authorization
3. I-131, Application for Travel Document
4. I-864, Affidavit of Support Under Section 213A of the Act
5. I-94, Arrival/Departure Record
6. DS-3025, Vaccination Documentation Worksheet / I-693, Report of Medical Examination and Vaccination Record
7. G-325a, Biographic Information

What I don't see mentioned is form I-130, Petition for Alien Relative. However, form I-485 states:

If you are filing because:

1. You are applying for adjustment of status under one of

the eligibility categories listed below, file your Form

I-485 with the USCIS Chicago Lockbox facility. See

“USCIS Chicago Lockbox Addresses” on Page 6 of these

instructions.

You must include a copy of the Form I-797C, Notice of

Action, of an approved Form I-130, Petition for Alien

Relative, or Form I-360, Petition for Amerasian,

Widow(er), or Special Immigrant, or other official

document reflecting a current priority date and family

preference, or file your application together with a Form

I-130 or Form I-360 as appropriate.

and

D. K-1 Fiancé(e) (and K-2 dependents) whose Form I-485

is based on an approved Form I-129F, Petition for

Alien Fiance(e), (Part 2, Box “c” on the form);

So, the questions are: Does anyone file the I-130 when adjusting status from a K-1 visa? And did you pay the I-130 fee in addition to the other fees?

[Lainie B 465]

No, because you have an approved I-129f. Submit a copy of the NOA2.

The only time a K-1 visa holder would submit an I-130 with AOS is if they did not marry within 90 days of the visa holder arriving, but did marry the petitioner after the 90 days.

[awkwardsoul 20]

I was told one would file a I-130 if you came on a K-1 and fulfilled it, but didn't file for AOS after either a year or two. If that doesn't apply, save your money on the I-130 filing fee.

[Lainie B 465]

I was told one would file a I-130 if you came on a K-1 and fulfilled it, but didn't file for AOS after either a year or two. If that doesn't apply, save your money on the I-130 filing fee.

If you had waited over 2 years between getting married and filing AOS then you could also file the I-130, meaning that you would get a 10 year green card instead of a 2 year green card, and save yourself the trouble and $$ of filing for ROC down the road. But this only works if you've been married over 2 years.

[KayDeeCee 4,893]

The approved I-129F petition and marrying within 90 days of entry with a K-1 is what makes you eligible to file for AOS. No need to file another petition.

As Lainie B already stated, if you did not marry within the 90 days, then you are no longer eligible to file based on your approved I-129F petition and K-1 entry. You would then need to file the I-130 too.

[EAS 45]

I guess an approved I-129F, Petition for Alien Fiancé(e) [as proven by a valid I-797, Notice of Action] along with a valid K-1 Type Visa and a valid Marriage License could be construed as an official document reflecting family preference AND I guess that one could argue that no priority date is needed for the spouse of a U.S. Citizen since visa numbers are immediately available for the spouse.

... other official document reflecting a current priority date and family preference ...

I am NOT arguing with anyone here or anything like that but it is not clear from the instructions for the I-485 that one does not need to file the I-130 [and pay the fee] when one is adjusting from a K-1 petition. Don't get me wrong, I am happy to not have to file another form and pay another fee.

[KayDeeCee 4,893]

It seems perfectly clear to me when reading the instructions, On page 1 of the I-485 instructions, it states in #3 that you are eligible to file the I-485 if you entered with a fiance(e) visa and married within 90 days. Then on page 4, #12 B. it states the evidence of eligibility based on admission as a K-1 fiance(e) that married the USC petitioner within 90 days. The evidence of eligibility in that case is listed there as a copy of your I-129F petition approval, your marriage certificate and your I-94.

Also, the part of the instructions you quoted in your first post was about where to file. You file at the Chicago Lockbox for a K-1 adjusting because it is one of the cases listed there. It follows there on page 5 as D., which you also quoted above.

Edited July 14, 2013 by Jay-Kay

[EAS 45]

It seems perfectly clear to me when reading the instructions, On page 1 of the I-485 instructions, it states in #3 that you are eligible to file the I-485 if you entered with a fiance(e) visa and married within 90 days. Then on page 4, #12 B. it states the evidence of eligibility based on admission as a K-1 fiance(e) that married the USC petitioner within 90 days. The evidence of eligibility in that case is listed there as a copy of your I-129F petition approval, your marriage certificate and your I-94.

Also, the part of the instructions you quoted in your first post was about where to file. You file at the Chicago Lockbox for a K-1 adjusting because it is one of the cases listed there. It follows there on page 5 as D., which you also quoted above.

It is good that it is perfectly clear to you. The statements that you reference simply state that one is eligible to apply for adjustment of status. They do not address what additional forms may be required. I asked because it was not perfectly clear to me as the statement on page 5 is:

"Please read the following instructions carefully to ensure

you file your application at the correct location.

If you are filing because:

1. You are applying for adjustment of status under one of

the eligibility categories listed below, file your Form

I-485 with the USCIS Chicago Lockbox facility. See

“USCIS Chicago Lockbox Addresses” on Page 6 of these

instructions.

You must include a copy of the Form I-797C, Notice of

Action, of an approved Form I-130, Petition for Alien

Relative, or Form I-360, Petition for Amerasian,

Widow(er), or Special Immigrant, or other official

document reflecting a current priority date and family

preference, or file your application together with a Form

I-130 or Form I-360 as appropriate.

NOTE: Read the Visa Bulletin “Family-Sponsored

Preferences” at www.travel.state.gov to ensure your

priority date is current before you file your application.

A. Spouse, parent, unmarried son/daughter under age 21

of a U.S. citizen with an approved Form I-130 or

Form I-130 filed together with this Form I-485 (Part

2, Box “a” on the form);

B. Beneficiary of an approved Form I-130 filed by a

qualifying relative (Part 2, Box “a” on the form);

C. Spouse or child of an immigrant who has applied for

adjustment of status or has been granted Lawful

Permanent Residence through a Family-Sponsored

Visa category that allows derivative status for spouses

and children (Part 2, Box “b” on the form)

D. K-1 Fiancé(e) (and K-2 dependents) whose Form I-485

is based on an approved Form I-129F, Petition for

Alien Fiance(e), (Part 2, Box “c” on the form);

..."

Notice the parts where it is written If you are filing because:

1. You are applying for adjustment of status under one of

the eligibility categories listed below

that you must [bolded on the Government's form] include a copy of the Form I-797C, Notice of

Action, of an approved Form I-130, Petition for Alien Relative, [underlining mine] or Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, or other official document reflecting a current priority date and family preference, or file your application together with a Form I-130 or Form I-360 as appropriate. [bolding and underlining mine]. Also notice that the D category is:

D. K-1 Fiancé(e) (and K-2 dependents) whose Form I-485

is based on an approved Form I-129F, Petition for

Alien Fiance(e), (Part 2, Box “c” on the form);

As you pointed out, page 1 does state that one is eligible to apply for adjustment of status based on entering on a K-1 visa and getting married to the petitioner within 90 days. I further agree that page 4 indicates that based on admission under a K-1 visa and subsequent marriage that one can supply certain evidence of eligibility. However, neither one of those states that one does not need to file the I-130 along with the I-485, while page 5 does state that the I-130 should be filed together with the application for adjustment.

It is clear to me that others have not filed the I-130 when adjusting from a K-1 visa and I consider the matter closed as far as my interaction on this forum is concerned. I will address any further questions I have with respect to this issue to DHS/USCIS.

Edited July 14, 2013 by EAS

[Hypnos 6,576]

It seems to have got lost in the noise, but the only times a K-1 should submit an I-130 along with their I-485 are:

(i) if they entered on a K-1, failed to marry within 90 days, but subsequently married their petitioner.

(ii) if you have been married for at least two years.

[KayDeeCee 4,893]

You are reading far more into it than you need to. It says 'K-1 Fiancé(e) (and K-2 dependents) whose Form I-485 is based on an approved Form I-129F, Petition for Alien Fiance(e)'.

The K-1 visa holder is eligible to adjust status based on the I-129F petition approval, their entry with a K-1 visa and getting married to their USC petitioner within 90 days. The instructions state what evidence the K-1 visa holder must submit with their I-485 on page 4 of the instructions. Including an approved I-130 petition is not a requirement for someone who entered with a K-1 and married the USC petitioner within 90 days of doing so.

For those that are adjusting from another form of eligibility that requires having to file an I-130, then they must include a copy of their I-130 approval notice or mail the I-130 at the same time as the I-485. Someone adjusting from a K-1 must include the approval notice from their I-129F petition. They are eligible based on that. They do not have to file a new petition. They were already petitioned for.

You can address the DHS and USCIS about this if you wish. Perhaps you could ask them to change the part there about where to mail the I-485 to state:

You must include a copy of the Form I-797C, Notice of

Action, of an approved Form I-130, Petition for Alien

Relative, or Form I-129F, Petition for

Alien Fiance(e), or Form I-360, Petition for Amerasian,

Widow(er), or Special Immigrant, or other official

document reflecting a current priority date and family

preference, or file your application together with a Form

I-130 or Form I-360 as appropriate.

I think the I-129F approval notice is covered in the "or other official document reflecting a current priority date and family preference" 'catch-all-the-rest' statement though.

Edited July 14, 2013 by Jay-Kay

[Harpa Timsah 13,258]

You do not file I-130. http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=fcf75b836ea73210VgnVCM100000082ca60aRCRD&vgnextchannel=3d7fa6c515083210VgnVCM100000082ca60aRCRD

[KayDeeCee 4,893]

You do not file I-130. http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=fcf75b836ea73210VgnVCM100000082ca60aRCRD&vgnextchannel=3d7fa6c515083210VgnVCM100000082ca60aRCRD

Thank you for providing that link. That should completely clear up any confusion over the I-485 instructions.