AOS with pending i130

[Tenreyro 174]

I was debating recently with a friend whether or not is possible to file for AOS if your F2A PD becomes current for file, and your i130 is pending.

 

What do you guys think?

Edited January 22, 2018 by Tenreyro

[geowrian 22,338]

You must meet the requirements to file for AOS. AOS of a family preference category is based on an approved I-130. The latest I-485's wording doesn't make this as clear as it was in the past, but the underlying requirement is unchanged.

 

It's different for an immediate relative of a USC in that you can concurrently file the I-130 and I-485 (even if the I-485 is sent after the I-130 but before approval of it).

Some info on concurrent filing: https://www.uscis.gov/greencard/concurrent-filing-form-i-485

Edited January 22, 2018 by geowrian

[Tenreyro 174]

3 hours ago, geowrian said:

You must meet the requirements to file for AOS. AOS of a family preference category is based on an approved I-130. The latest I-485's wording doesn't make this as clear as it was in the past, but the underlying requirement is unchanged.

 

It's different for an immediate relative of a USC in that you can concurrently file the I-130 and I-485 (even if the I-485 is sent after the I-130 but before approval of it).

Some info on concurrent filing: https://www.uscis.gov/greencard/concurrent-filing-form-i-485

Yeah, that was my friend's position, however, later I checked the i485 instructions and says: "If a visa is immediately available, applicants filing under a family-based preference immigrant category do not have to wait until Form I-130 is approved to file Form I-485". Therefore, I think if its current to file, you shouldn't have any problem.

[geowrian 22,338]

17 minutes ago, Tenreyro said:

Yeah, that was my friend's position, however, later I checked the i485 instructions and says: "If a visa is immediately available, applicants filing under a family-based preference immigrant category do not have to wait until Form I-130 is approved to file Form I-485". Therefore, I think if its current to file, you shouldn't have any problem.

Actually, I think you're right. The requirement to concurrently file remains as stated above. However, one permitted action to concurrently file is "If an immigrant visa number is immediately available", which is where I believe this falls.

[Tenreyro 174]

1 hour ago, geowrian said:

Actually, I think you're right. The requirement to concurrently file remains as stated above. However, one permitted action to concurrently file is "If an immigrant visa number is immediately available", which is where I believe this falls.

Yeah, but it wouldn't be concurrently, it would be "while a i-130 is pending" but with a PD current to file. In time present it would be people before Nov 01, 2016, right? (Since Chart B is used for AOS)

[geowrian 22,338]

1 minute ago, Tenreyro said:

Yeah, but it wouldn't be concurrently, it would be "while a i-130 is pending" but with a PD current to file. In time present it would be people before Nov 01, 2016, right? (Since Chart B is used for AOS)

Technically that is still considered concurrent filing.

 

For January, F2A would fall under Feb 01, 2016. That's when the PD becomes current and therefore an immigrant visa number would become immediately available. Note that this differs from the "Dates for Filing" chart currently used for family-based filings. If the I-130 is approved, one could file using that chart. If not approved, they must still wait for the visa to become immediately available, which occurs based on the "Final Action Dates" chart.