Concurrent filing of I-130 and I-485 from overseas

[willkrischur]

Hello all!

We are filing I-130, I-130A and I-485 from Australia. I am a US citizen and my husband is an Australian citizen. On the USCIS website it says "Concurrent filing is allowed in the following instances: ....If an immigrant visa number is immediately available". It also says "A petition and application may be filed concurrently when there is a visa number immediately available at the time of filing. Concurrent filing is always allowed for all immediate relatives of a United States citizen, since there are no numeric limitations in this category."
But I have read (many times) that you cannot file a I-485 from outside the US. I'm so confused about this. Any information on this would be appreciated.
***I did call the embassy and the USCIS office, but they just read the information regarding this off the website!! Also, there is NO consular filing available in Australia.

Thanks for any help!

[scientist2016]

Hello all!

We are filing I-130, I-130A and I-485 from Australia. I am a US citizen and my husband is an Australian citizen. On the USCIS website it says "Concurrent filing is allowed in the following instances: ....If an immigrant visa number is immediately available". It also says "A petition and application may be filed concurrently when there is a visa number immediately available at the time of filing. Concurrent filing is always allowed for all immediate relatives of a United States citizen, since there are no numeric limitations in this category."
But I have read (many times) that you cannot file a I-485 from outside the US. I'm so confused about this. Any information on this would be appreciated.
***I did call the embassy and the USCIS office, but they just read the information regarding this off the website!! Also, there is NO consular filing available in Australia.

Thanks for any help!

Yes I485 is for AOS (adjustment of status). So by definition, to be eligible to file it one should already have a status. Hence, I485 can be filed only from within the US, since only by entering the US does one acquire a status which can subsequently be adjusted.

[miiki]

The I485 will get rejected.

Per the instructions for the I485: https://www.uscis.gov/system/files_f...pdf?download=1

“Form I-485, Application to Register Permanent Residence or Adjust Status, is used by a person in the United States to apply for lawful permanent resident status. Throughout these Instructions, we will sometimes refer to Form I-485 as an application for adjustment of status or as an adjustment application...

Unless applying under INA section 245(i), most Form I-485 applicants must submit photocopies of documentation showing they were inspected by an immigration officer and either admitted or paroled into the United States.”

Also, the biometric appointment and interview occur in the US.

Im not sure where you got the idea that there is no consular processing of immigrant visas in Australia. The website for the US Embassy in Australia says that they are processed at the consulate in Sydney. https://au.usembassy.govhttps://www....migrant-visas/

You will need an approved I-130 (which could take about a year) before you can begin consular processing (which could take about another year).

[kaylip]

You cannot adjust status since your husband has no status currently to adjust. I 485 is for people who are in the US as a non-immigrant status and wishes to change to immigrant/permanent resident status. If he's in Australia you can't file I485 because Australia is not a US territory. You have to do Consular processing or if there isn't go back to the US and petition for him there. He can visit you periodically throughout the process. Australians don't need to apply for a visitor's visa so it should be easy for you guys since he just has to purchase a ticket and hop on a plane.

[mustang85635]

Hello all!

We are filing I-130, I-130A and I-485 from Australia. I am a US citizen and my husband is an Australian citizen. On the USCIS website it says "Concurrent filing is allowed in the following instances: ....If an immigrant visa number is immediately available". It also says "A petition and application may be filed concurrently when there is a visa number immediately available at the time of filing. Concurrent filing is always allowed for all immediate relatives of a United States citizen, since there are no numeric limitations in this category."
But I have read (many times) that you cannot file a I-485 from outside the US. I'm so confused about this. Any information on this would be appreciated.
***I did call the embassy and the USCIS office, but they just read the information regarding this off the website!! Also, there is NO consular filing available in Australia.

Thanks for any help!

EHm yes there consular processing, consular filling means something else only few countries have that. It means that the I-130 is processed in the embassy and both people live in that country. You can get CR1 through the embassy that is your route you cant adjust from overseas.

[willkrischur]

Concurrent filing

You cannot adjust status since your husband has no status currently to adjust. I 485 is for people who are in the US as a non-immigrant status and wishes to change to immigrant/permanent resident status. If he's in Australia you can't file I485 because Australia is not a US territory. You have to do Consular processing or if there isn't go back to the US and petition for him there. He can visit you periodically throughout the process. Australians don't need to apply for a visitor's visa so it should be easy for you guys since he just has to purchase a ticket and hop on a plane.

The USCIS website says:
"Immediate relatives do not have to wait until Form I-130 is approved to file Form I-485. You may file your Form I-485
together with your Form I-130, while Form I-130 is pending, or after your Form I-130 is approved. Immediate relatives
always have a visa available once Form I-130 is approved." -found on USCIS "I-485, Application to Register Permanent Residence or Adjust Status" instructions page 20.

So we are sending them together....I will let you know what happens.
Kristi

[kaylip]

[QUOTE=willkrischur;555582]The USCIS website says:
"Immediate relatives do not have to wait until Form I-130 is approved to file Form I-485. You may file your Form I-485
together with your Form I-130, while Form I-130 is pending, or after your Form I-130 is approved. Immediate relatives
always have a visa available once Form I-130 is approved." -found on USCIS "I-485, Application to Register Permanent Residence or Adjust Status" instructions page 20.

That is not for your case. Please seek a lawyer or someone who knows about the process because you don't understand.

"Adjustment of Status
Adjustment of status is the process that you can use to apply for lawful permanent resident status (also known as applying for a Green Card) when you are present in the United States. This means that you may get a Green Card without having to return to your home country to complete visa processing.

If you are outside of the United States, you must obtain your visa abroad through consular processing."

That is what the USCIS website says. Here's the link https://www.uscis.gov/greencard/adjustment-of-status

[rayb]

Kristi,

You risk losing the $1,225 submittal fee, since the applicant is unqualified to use the I-485 option while outside the U.S.

--Ray B

The USCIS website says:
"Immediate relatives do not have to wait until Form I-130 is approved to file Form I-485. You may file your Form I-485
together with your Form I-130, while Form I-130 is pending, or after your Form I-130 is approved. Immediate relatives
always have a visa available once Form I-130 is approved." -found on USCIS "I-485, Application to Register Permanent Residence or Adjust Status" instructions page 20.

So we are sending them together....I will let you know what happens.
Kristi

[newacct]

The USCIS website says:
"Immediate relatives do not have to wait until Form I-130 is approved to file Form I-485. You may file your Form I-485
together with your Form I-130, while Form I-130 is pending, or after your Form I-130 is approved. Immediate relatives
always have a visa available once Form I-130 is approved." -found on USCIS "I-485, Application to Register Permanent Residence or Adjust Status" instructions page 20.

So we are sending them together....I will let you know what happens.
Kristi

Someone must have legally entered the US to be eligible for Adjustment of Status. Your parents are not eligible because they have not entered the US. One of the required pieces of evidence for I-485 is evidence of inspection and admission or inspection and parole (i.e. legal entry), which they do not have.

[4EVER]

The USCIS website says:
"Immediate relatives do not have to wait until Form I-130 is approved to file Form I-485. You may file your Form I-485
together with your Form I-130, while Form I-130 is pending, or after your Form I-130 is approved. Immediate relatives
always have a visa available once Form I-130 is approved." -found on USCIS "I-485, Application to Register Permanent Residence or Adjust Status" instructions page 20.

So we are sending them together....I will let you know what happens.
Kristi

Hi,

You cannot concurrently file I-130 (Petition) and I-485 (Adjustment of Status) if you are outside the USA. Concurrent filing can be done only when you are already present in the US. Part of the process is biometrics screening (photo, signature, fingerprints), which is done only in a USCIS office, within the US.

Since you are outside the US, the process available to you and your US citizen spouse is Consular Processing (https://www.uscis.gov/greencard/consular-processing). You will have to go to the US Consulate in Sydney, Australia to file for immigration (https://au.usembassy.govhttps://www....migrant-visas/). The first step is for your US citizen spouse to file Form I-130 to petition you. Check out this page, https://travel.state.gov/content/tri...de-the-us.html, for more details.

Another route is for you and your USC spouse to go to the US. Since you're an immediate relative (spouse) of a USC and coming from a Visa Waiver Program partner-country (Australia), you are permitted to apply for adjustment of status. Only then can you do concurrent filing of I-130 and I-485, since you are already inside the US.

If you proceed now with submitting both Forms I-130 and I-485 while in Australia, you will likely get a Notice of Rejection, with your documents and checks for the filing fees returned.

[miiki]

The USCIS website says:
"Immediate relatives do not have to wait until Form I-130 is approved to file Form I-485. You may file your Form I-485
together with your Form I-130, while Form I-130 is pending, or after your Form I-130 is approved. Immediate relatives
always have a visa available once Form I-130 is approved." -found on USCIS "I-485, Application to Register Permanent Residence or Adjust Status" instructions page 20.

So we are sending them together....I will let you know what happens.
Kristi

Yes. When you are in the US. Which you're not. So you can't. But whatever. Do what you like. Worst case: they keep your $1225. Best: they reject the app from the beginning and send everything back.

Also, since you have thousands of USD to throw around to just see what happens despite everyone telling you that you can't do it that way.... Can you send me $1000?

[kaylip]

Yes. When you are in the US. Which you're not. So you can't. But whatever. Do what you like. Worst case: they keep your $1225. Best: they reject the app from the beginning and send everything back.

Also, since you have thousands of USD to throw around to just see what happens despite everyone telling you that you can't do it that way.... Can you send me $1000?

Did you receive a SSN with your EAD card?

[miiki]

Did you receive a SSN with your EAD card?

Hubby already had a SSN before we got married. He went and applied for it when he got his P1 visa a couple of years ago.

[rayb]

Apparently the OP misunderstood the instructions she read regarding submitting the I-485 and I-130 at the same time, and doesn't understand that that stipulation only applies if the applicant is already legally in the U.S.

Since the OP has assured us that she/he will let us know the result of her mailing both forms at the same time for her mother, who is still abroad, she must be prepared to forfeit the $1,225 submittal fee for the I-485.

Everyone is looking for the fastest way to get through the immigration requirements, but to submit petitions before eligiblility (being in the U.S. legally) is simply inadvisable.

--Ray B

Someone must have legally entered the US to be eligible for Adjustment of Status. Your parents are not eligible because they have not entered the US. One of the required pieces of evidence for I-485 is evidence of inspection and admission or inspection and parole (i.e. legal entry), which they do not have.

[UScitizenFilingforspouse]

The USCIS website says:
"Immediate relatives do not have to wait until Form I-130 is approved to file Form I-485. You may file your Form I-485
together with your Form I-130, while Form I-130 is pending, or after your Form I-130 is approved. Immediate relatives
always have a visa available once Form I-130 is approved." -found on USCIS "I-485, Application to Register Permanent Residence or Adjust Status" instructions page 20.

So we are sending them together....I will let you know what happens.
Kristi

Kristi,

No one here benefits from misinforming you. Everyone who has chimed in knows what they're saying. These forms and instructions can be confusing. Let your guard down for a moment and read through them again.

Per USCIS website, "Purpose of Form I-485: Use this form to apply for lawful permanent resident status if you are in the United States."
Here is the link the that https://www.uscis.gov/i-485

It's that simple. By the way, make sure you read through the directions for Form I-130, as well, and pay special attention to the examples of evidence of bona fide marriage. That's given people hard time, too. I mean no disrespect but you are missing a very basic instruction. If you missed that, there is a high likelihood that you may have missed several other key items. The rejection rate for these forms is HIGH. I strongly suggest that you take a step back and consult an attorney or at least an immigration law paralegal (they are better with forms). You can do this online. You could call the law firm, too. Take advantage of the free consultation that they all give.

Unless the beneficiary is in the US, the only process available to you is consular processing. The process of adjustment of status was created to adjust status from a non-immigrant visa (e.g., F-1 student) to a legal permanent resident (Green card).

Best of luck.