I-485 while an I-130 is pending

[maria_b84 0]

Hi everyone

I finally made it to the US yesterday. Now, the AOS nightmare has begun. We filed the I-130 almost 6 months ago, the case was touched on march 2 2005 and after a week we got a RFE. We sent the required document back the next week and last week the CIS sent us an email saying that they had got our document and that is being processed. After that we haven't heard anything from them again. We want to start filling the I-485 out but I readover the internet that my I-130 has to be approved before I can file for the AOS. Is that true? Or can I just file the AOS while my I-130 is still pending?

[JayJay 4]

You can file your I-485 while your I-130 is still being processed On the first page I believe there's a section in which you state why you're eligable to file the I-485, and in this, you basically put the option that states you'll have an immigrant visa number immediately available to you upon approval of the I-130....or soemthign - just check that out and see.

We filed both at the same time, as I entered originally on a VWP, and we'd not even known anything about visas before that. You're good to go

[ChristinaM 0]

As a K3, you should have an approved I-129F, I believe, which is your basis for adjustment. The I-130 would be relevant for a CR1/IR1 visa.

[hcj 0]

As a K-3 you have two options:

1) File for AOS

2) Wait for I-130 to be approved and go back to your home country to get an immigrant visa. (When you use the immigrant visa to enter the US, you are entering as a Lawful Permanent Resident and will trigger the plastic green card to be sent to you in the mail.)

[scy 0]

As a K3, you should have an approved I-129F, I believe, which is your basis for adjustment. The I-130 would be relevant for a CR1/IR1 visa.

Uh... This is incorrect. The I-130 is very much relevant for adjustment of status for a K-3. The I-130 has to be approved before you can file for adjustment of status.

You can not use the I-129F as basis for adjustment of status on a K-3. I can quote the relevant section of the LIFE Act if someone wants to see it.

As a K-3 you have two options:

1) File for AOS

2) Wait for I-130 to be approved and go back to your home country to get an immigrant visa. (When you use the immigrant visa to enter the US, you are entering as a Lawful Permanent Resident and will trigger the plastic green card to be sent to you in the mail.)

To the original poster. You can file for adjustment of status. Your application for adjustment of status will not be acted upon until your I-130 is approved.

This process is the same for people who adjusts from other visas like VWP, B-2, F-1, etc. In those cases they file the I-130 with the I-485. The I-130 is adjudicated first, when the I-130 is approved, then the I-485 is adjudicated.

[hcj 0]

This process is the same for people who adjusts from other visas like VWP, B-2, F-1, etc. In those cases they file the I-130 with the I-485. The I-130 is adjudicated first, when the I-130 is approved, then the I-485 is adjudicated.

No -- both the I-130 and I-485 are adjudicated together, at your AOS interview.

[scy 0]

This process is the same for people who adjusts from other visas like VWP, B-2, F-1, etc. In those cases they file the I-130 with the I-485. The I-130 is adjudicated first, when the I-130 is approved, then the I-485 is adjudicated.

No -- both the I-130 and I-485 are adjudicated together, at your AOS interview.

Really? Do you have a source for this?

Think about the purposes of each form and you will see that I am correct. The I-130 is a petition to classify an alien as a relative of a US citizen or LPR. The I-485 is an application by the alien to adjust status on some basis, usually that basis is because the alien is a relative of a US citizen or LPR.

Now if the alien doesn't have an approved I-130, then the alien isn't classified as a relative of a US citizen or LPR. Therefore, without that classification, the alien doesn't have a basis for adjustment of status.

The I-130 and I-485 are definitely NOT adjudicated at the adjustment of status interview. They are adjudicated beforehand in the order I mentioned, then the interview is given to make sure that the relationship between the petitioner and beneficiary isn't a fraud.

In fact the AOS interview isn't necessary in some cases. We have seen people of VJ who had their AOS approved without the interview.

Edited April 1, 2006 by scy

[hcj 0]

This process is the same for people who adjusts from other visas like VWP, B-2, F-1, etc. In those cases they file the I-130 with the I-485. The I-130 is adjudicated first, when the I-130 is approved, then the I-485 is adjudicated.

No -- both the I-130 and I-485 are adjudicated together, at your AOS interview.

Really? Do you have a source for this?

Think about the purposes of each form and you will see that I am correct. The I-130 is a petition to classify an alien as a relative of a US citizen or LPR. The I-485 is an application by the alien to adjust status on some basis, usually that basis is because the alien is a relative of a US citizen or LPR.

Now if the alien doesn't have an approved I-130, then the alien isn't classified as a relative of a US citizen or LPR. Therefore, without that classification, the alien doesn't have a basis for adjustment of status.

The I-130 and I-485 are definitely NOT adjudicated at the adjustment of status interview. They are adjudicated beforehand in the order I mentioned, then the interview is given to make sure that the relationship between the petitioner and beneficiary isn't a fraud.

In fact the AOS interview isn't necessary in some cases. We have seen people of VJ who had their AOS approved without the interview.

Do you have a source for your assertions?

It is true that USCIS may, at their discretion, adjudicate an application without an interview. However, in cases where I-130 and I-485 are filed together, and an interview is given, both petitions are adjudicated at the same time, at the interview.

How do I know? Because that is the process that my husband and I went through.

You are often on here quoting incorrect information, and I am not the first one to call you on it. So back off.

[scy 0]

This process is the same for people who adjusts from other visas like VWP, B-2, F-1, etc. In those cases they file the I-130 with the I-485. The I-130 is adjudicated first, when the I-130 is approved, then the I-485 is adjudicated.

No -- both the I-130 and I-485 are adjudicated together, at your AOS interview.

Really? Do you have a source for this?

Think about the purposes of each form and you will see that I am correct. The I-130 is a petition to classify an alien as a relative of a US citizen or LPR. The I-485 is an application by the alien to adjust status on some basis, usually that basis is because the alien is a relative of a US citizen or LPR.

Now if the alien doesn't have an approved I-130, then the alien isn't classified as a relative of a US citizen or LPR. Therefore, without that classification, the alien doesn't have a basis for adjustment of status.

The I-130 and I-485 are definitely NOT adjudicated at the adjustment of status interview. They are adjudicated beforehand in the order I mentioned, then the interview is given to make sure that the relationship between the petitioner and beneficiary isn't a fraud.

In fact the AOS interview isn't necessary in some cases. We have seen people of VJ who had their AOS approved without the interview.

Do you have a source for your assertions?

It is true that USCIS may, at their discretion, adjudicate an application without an interview. However, in cases where I-130 and I-485 are filed together, and an interview is given, both petitions are adjudicated at the same time, at the interview.

How do I know? Because that is the process that my husband and I went through.

You are often on here quoting incorrect information, and I am not the first one to call you on it. So back off.

Yay. Flame war.

If you base your knowledge of USCIS's adjudication process on your experience alone, I'm afraid you're sorely lacking. I don't claim to know much, but what I know, I'm able to back up with written, non-hearsay information.

Since you think I'm so fond of quoting incorrect information. Here are some information on how an adjustment of status is adjudicated. From the Adjudicator's Field Manual.

http://uscis.gov/lpbin/lpext.dll/inserts/a...t-frame.htm&2.0

"(e) Evaluation of Documentation.

(1) Documents Pertaining to Underlying Applications and Petitions. Usually, the bulk of the documentation considered by an adjudicator handling an adjustment case has already been evaluated during the Form I-864, Form I-130 or I-140 adjudication process. Issues concerning the evaluation of such documentation are covered in Chapter 20.5, Chapter 21, and Chapter 22 resp. of this field manual. Where you are satisfied that the officer who adjudicated the underlying application has done his or her job properly, you may choose to spend little or no time examining the underlying documentation and questioning the adjustment applicant and other parties (e.g., a petitioner) on the merits of the underlying applications or petitions. However, you should always remember that even though you may accept the decision(s) reached by the previous adjudicator(s), the responsibility for making the correct final decision on the adjustment application rests with you, the adjudicator of that application. "

See the part I highlighted? That section means that the adjudicator adjustment must look at the merits of the underlying applications or petitions for adjustment of status. In a marriage based adjustment of status, the adjudicator looks to see if the marriage is bona fide.

What you don't seem to understand is that adjudication is a process, not any single act. The adjudicator looks at the application and determines its merits. If he finds the application lacking, he might request more evidence from the applicants. He also might conduct an interview to allow him to find out more about the merits of the case and to allow the applicants to make their case. The final decision on approval might or might not occur at the interview.

If you think that the adjudicator is going to decide an adjustment of status case on the sole basis of a 1/2 hour interview, then you're too dumb.

"(2) Documents Pertaining to Adjustment Application. Carefully review all documents submitted in direct support of the adjustment application. Adjustment applicants have submitted fraudulent birth records (to avoid quota chargeability problems, or to hide a dependent’s having “aged out”), marriage records (in both spousal petition and derivative adjustment cases), police clearances (for obvious reasons), and other documents. If you have doubts about the integrity of a document, but are unable to resolve those doubts during the interview, the same tools that would be available in other cases are available here. After obtaining the necessary supervisory review and clearance, you could:

• Refer the matter for Field Examination (if your office participates in this program);

• Check with the Forensic Document Lab; or

• Refer the document for (local or overseas) investigation (see Chapter 10.5(d) of this field manual).

Remember that after you receive a report from another office, branch or individual, you must make any non-confidential adverse information available to the applicant if you intend to deny the benefit on the basis of said report. You must give him or her an opportunity to review and rebut that report, before your issue your decision. "

And lastly, before you accuse me of providing inaccurate information, you should find posts where I wrote such things. Otherwise to make such accusations without proof only shows that you're a sore loser.

[ChristinaM 0]

Forgive my ignorance - you know I'm a VWP adjuster

Where does the I-129F come into it? Is that just to get the K3, and does not carry on to give you a basis to adjust, and is that why one also needs to file the I-130?

[scy 0]

Forgive my ignorance - you know I'm a VWP adjuster

Where does the I-129F come into it? Is that just to get the K3, and does not carry on to give you a basis to adjust, and is that why one also needs to file the I-130?

When USCIS implemented the K-3, it decided to use the I-129F as the form to classify a US citizen's spouse as a K-3 beneficiary. USCIS did so because it didn't want to make a new form just for the K-3. The I-129F for K-3 does not classify the beneficiary as a relative of a US citizen for an immigrant visa. Yes, the I-129F only allows the beneficiary to apply for the K-3 visa. It doesn't allow the K-3 to adjust status, like it does for the K-1.

It's rather dumb that USCIS requires two separate petitions that basically do the same thing, i.e., classify an alien as a relative. But that's the way they implemented the law.

Edited April 1, 2006 by scy

[ChristinaM 0]

Thank you for clarifying that for me.

My apologies for putting bad information out there; we live and learn

[hcj 0]

If you base your knowledge of USCIS's adjudication process on your experience alone, I'm afraid you're sorely lacking. I don't claim to know much, but what I know, I'm able to back up with written, non-hearsay information.

This is fairly common knowledge, that for I-130/I-485 that are filed concurrently, they are adjudicated together at the interview. My attorney told me that, it was my own experience as well as all others that I know in person or online, and here is Mr. Folinsky saying the same thing on BE, since I know you don't believe me. (In case you don't frequent BE/usenet, Mr. Folinsky is one of the "resident" immigration attorneys who frequents that board.)

http://britishexpats.com/forum/showthread....485+adjudicated

"The I-130 is processed WITH the I-485. Although filed via the lockbox, the I-130/485 are adjudicated in the Districts."

http://britishexpats.com/forum/showthread....485+adjudicated

"The I-130 has to be approved before the I-485 can be approved. This can be for about 45 seconds."

I-130 and I-485 are used for a lot of other adjustment situations besides marriage to a USC. What you quoted is true for almost all other family-based preference categories (the ones with yearly quotas on how many visa numbers they give out each year). But the IR category -- immediate relatives of USCs -- is treated differently than all the other categories. In categories where you cannot file I-130 and I-485 concurrently, it is true that you have to have the I-130 approved first before you are even allowed to file I-485.

What you don't seem to understand is that adjudication is a process, not any single act. The adjudicator looks at the application and determines its merits. If he finds the application lacking, he might request more evidence from the applicants. He also might conduct an interview to allow him to find out more about the merits of the case and to allow the applicants to make their case. The final decision on approval might or might not occur at the interview.

I agree with all of that there. Nothing you've said above precludes the decision process from taking place during a single, ten minute interview. I would not rule out the AO studying your initial filing documents prior to the interview, or observing your interaction as a couple while you are out in the waiting room. But the actual decision -- if it's an approval anyway -- is frequently made at the end of the interview. If a denial, that frequently takes longer because they want to give you a chance to come up with further evidence, an adequate affidavit of support, a chance to go through a second interview, etc.

If you think that the adjudicator is going to decide an adjustment of status case on the sole basis of a 1/2 hour interview, then you're too dumb.

I do think that -- although as I mentioned earlier, I would not rule out the AO going through your initial filing documents prior to the interview, or watching you while you are out in the waiting room. And I'll even shorten that to a 10-15 minute interview which is how long the typical AOS interview lasts. If that makes me dumb, OK.

And lastly, before you accuse me of providing inaccurate information, you should find posts where I wrote such things. Otherwise to make such accusations without proof only shows that you're a sore loser.

It's too late tonight, but I promise to look tomorrow.

[scy 0]

If you base your knowledge of USCIS's adjudication process on your experience alone, I'm afraid you're sorely lacking. I don't claim to know much, but what I know, I'm able to back up with written, non-hearsay information.

This is fairly common knowledge, that for I-130/I-485 that are filed concurrently, they are adjudicated together at the interview. My attorney told me that, it was my own experience as well as all others that I know in person or online, and here is Mr. Folinsky saying the same thing on BE, since I know you don't believe me. (In case you don't frequent BE/usenet, Mr. Folinsky is one of the "resident" immigration attorneys who frequents that board.)

http://britishexpats.com/forum/showthread....485+adjudicated

"The I-130 is processed WITH the I-485. Although filed via the lockbox, the I-130/485 are adjudicated in the Districts."

http://britishexpats.com/forum/showthread....485+adjudicated

"The I-130 has to be approved before the I-485 can be approved. This can be for about 45 seconds."

I-130 and I-485 are used for a lot of other adjustment situations besides marriage to a USC. What you quoted is true for almost all other family-based preference categories (the ones with yearly quotas on how many visa numbers they give out each year). But the IR category -- immediate relatives of USCs -- is treated differently than all the other categories. In categories where you cannot file I-130 and I-485 concurrently, it is true that you have to have the I-130 approved first before you are even allowed to file I-485.

So you agree that the I-130 has to be approved before the I-485 can be approved. In your earlier post you wrote "It is true that USCIS may, at their discretion, adjudicate an application without an interview. However, in cases where I-130 and I-485 are filed together, and an interview is given, both petitions are adjudicated at the same time, at the interview."

They are not adjudicated "AT THE SAME TIME". They can not be, if one has to be approved before the other can be approved. At the same time means simultaneously or concurrently. The adjudicator can not stamp approved on both I-130 and I-485 "AT THE SAME TIME". He has to approve the I-130 first. This can be done 1 second, 1 week, or many months prior to approving the I-485, but it still has to be done first.

Folinsky is correct. The I-130/I-485 are adjudicated together. But together is not the same as simultaneously. The difference is subtle but critical. Together means that the petitions are combined. But they are not adjudicated simultaneously, they can not be. Even Folinsky says the I-130 has to be approved before the I-485 can be approved.

Perhaps English isn't your first language. Within the language, there are many minutiae that if used incorrectly, can change the whole meaning of a conversation.

What you don't seem to understand is that adjudication is a process, not any single act. The adjudicator looks at the application and determines its merits. If he finds the application lacking, he might request more evidence from the applicants. He also might conduct an interview to allow him to find out more about the merits of the case and to allow the applicants to make their case. The final decision on approval might or might not occur at the interview.

I agree with all of that there. Nothing you've said above precludes the decision process from taking place during a single, ten minute interview. I would not rule out the AO studying your initial filing documents prior to the interview, or observing your interaction as a couple while you are out in the waiting room. But the actual decision -- if it's an approval anyway -- is frequently made at the end of the interview. If a denial, that frequently takes longer because they want to give you a chance to come up with further evidence, an adequate affidavit of support, a chance to go through a second interview, etc.

If you think that the adjudicator is going to decide an adjustment of status case on the sole basis of a 1/2 hour interview, then you're too dumb.

I do think that -- although as I mentioned earlier, I would not rule out the AO going through your initial filing documents prior to the interview, or watching you while you are out in the waiting room. And I'll even shorten that to a 10-15 minute interview which is how long the typical AOS interview lasts. If that makes me dumb, OK.

You just can't admit what you're wrong. The interview is only one part of the adjudication process. The adjudicator has to be satisfied that the file is complete and that the evidence submitted is genuine. The interview serves to bolster or dispell the suspicion that the applicants are inelligible. The interview by itself does not make the case approvable. You can have the best interview in the world, but if your case is not complete, you are not going to be approved.

And lastly, before you accuse me of providing inaccurate information, you should find posts where I wrote such things. Otherwise to make such accusations without proof only shows that you're a sore loser.

It's too late tonight, but I promise to look tomorrow.

I'm eagerly awaiting the results of your search.

[JayJay 4]

*Says very quietly*

Ahem...

Es'cuse me but...I got an email saying "your I-130 has been approved" on March 30th, and our interview for AOS was March 29th..

*Bats eyelids* Can I derefore pwease assume dat de I-130 wuz adjoodicatid at deh intervoo?

Or am I TOTALLY wrong?