I-130 submitted without I-485

[Tolulope Oke-Bajo]

Hi
My husband and I sent in I-130 form without including the I-485 and the I-765. I have just received the I-130 notice of action and I was told that I can no longer send in the I-485 package but wait until a visa is ready for me because am here on a visit visa.
Is this true please? And can I still send in the I-485 package ASAP?
Thanks

[newacct]

Your husband is a US citizen, right?

No, it is not true. You can file I-485 at any time, attaching a copy of the I-130 receipt. There is no such thing as "wait until a visa is ready" -- visa numbers are always available for the Immediate Relative category.

[Tolulope Oke-Bajo]

He is a green card holder who gained a visa lottery 4yrs ago into the United States. Does this matter please?

[newacct]

He is a green card holder who gained a visa lottery 4yrs ago into the United States. Does this matter please?

Yes, it matters, because the spouse of a permanent resident is in the F2A category with currently about a 1.5 year wait for visa numbers. You cannot file I-485 or get an immigrant visa until a visa number is available. So what you did was correct -- I-485 shouldn't have been filed. You will almost certainly have to leave the US and do consular processing in your home country, because as you are not in the Immediate Relative category, you must be in status to do Adjustment of Status (I-485), and visitor status only lasts 6 months and almost certainly will not last long enough for you to be able to file I-485.

[Tolulope Oke-Bajo]

But I really do not have any plan of going out of the state as I have fallen out of status and I am expecting a baby. Can I send in the I-485 once the I-130 is approved? What would you advise I do please?

[newacct]

But I really do not have any plan of going out of the state as I have fallen out of status and I am expecting a baby. Can I send in the I-485 once the I-130 is approved? What would you advise I do please?

Well that's not a good plan. You are not eligible for AOS in your category if you're out of status. So the only other option is Consular Processing abroad, which requires leaving the US. You are accruing unlawful presence now. If you leave after accruing 180 days of unlawful presence, you trigger a 3-year ban; if you leave after accruing 1 year of unlawful presence, you trigger a 10-year ban. So if you want to immigrate as the spouse of a permanent resident, you should leave before accruing 180 days of unlawful presence. Otherwise, you will basically have to wait until your husband becomes a citizen.

[Tolulope Oke-Bajo]

Is it still advisable to wait till my husband becomes a citizen? Because he becomes one in less than a year from now.
And do you know what will happen to my case after I-130 approval??