file for 485 and 130 with ice deportation?

[immigrationlimbo 0]

I am currently married to a US citizen but have deportation against me. My spouse and I filed for I-130 but my current attorney says that I cannot file for I-485 at the same time because ICE has jurisdiction over my case.

I contacted another attorney and he said that I CAN file for I-485 along with I-130 based on this memo:

http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/adjuststatus011207.pdf

it says

“In general, adjustment of status applications filed by arriving aliens who have been paroled and placed in removal proceedings will be adjudicated only by USCIS. “

So based on this memo, can I also file for I-485 before a decision has been made about my I-130?

Is this a good idea to do so?

My current attorney said it was not possible to file concurrently when I first consulted with him, but when I consulted with another attorney he said I can based on this memo?

I am from the middle east and I am paroled. When I was detained at airport I came to the US under a visitor visa.

Thank You all for your time

[aussie_jason 195]

You would be better off asking this over on Avvo.com to get input from other attorneys, most of the replies you would get here would just be educated guesses.

[KayDeeCee 4,896]

The I-485 instructions do not mention anything about not being able to file if you are currently under deportation proceedings. Perhaps consult with a couple more attorneys and see which answer is given the most, then pick the attorney you feel most comfortable representing you.

~ Moved from AOS from Family Based Visas to AOS from Work, Student & Tourist Visas - OP in US and wanting to AOS from tourist visa ~

[Hypnos 6,578]

The first lawyer is correct, you are likely not eligible to file for AoS due to being under removal proceedings. Those proceedings would need to be terminated by the immigration judge before you were eligible to file for AoS with USCIS. Alternatively, the judge could direct you to file an I-485 with him and then he would have exclusive jurisdiction to adjudicate it, but most will simply terminate proceedings and tell you to do it the normal way, mostly due to their overworked backlog.

You are probably not considered an arriving alien, so that memo you linked doesn't apply to you. Were you paroled on your most recent entry to the US, or did you enter on a visa?

Edited January 30, 2014 by Hypnos

[KayDeeCee 4,896]

http://www.nolo.com/legal-encyclopedia/in-removal-proceedings-who-can-apply-adjustment-status-based-family.html

Special Procedures for Adjusting Status in Removal Proceedings

Outside of removal proceedings, it is USCIS that ordinarily processes adjustment of status applications, from people who apply on their own initiative. However, when an undocumented immigrant applies for adjustment before an immigration judge, USCIS is responsible only for processing and making a decision on the “Petition for Alien Relative” (Form I-130), which is filed by the U.S. citizen or LPR petitioner.USCIS will usually approve the I-130 petition if there is enough evidence to show that the petitioner is a U.S. citizen or LPR and the alien beneficiary has a relationship with the petitioner that makes him or her theoretically eligible for an immigrant visa.Once USCIS approves the I-130, the immigration judge will accept and make a decision on the Application for Adjustment of Status (Form I-485). When reviewing the I-485, the immigration judge may apply special rules for persons who are adjusting status in court rather than through USCIS.For example, when a person is adjusting status based on marriage, and the marriage was entered into when the undocumented immigrant was already in removal proceedings, the undocumented immigrant must give the court “clear and convincing” evidence that the marriage is real (i.e. that he or she did not get married just to get a green card). Normally, a person seeking a green card based on marriage simply has to show USCIS that it is more likely than not (there's a greater than 50% probability) that the marriage is real. “Clear and convincing” represents a higher burden of proof. The evidence presented must outweigh (though not necessarily eliminate) the judge's doubts.

[Hypnos 6,578]

Removed.

Edited January 31, 2014 by Hypnos