Should I file i-485 and i130 concurrently or no?

[Kencav]

My wife and I got married last year June 2018.
Her i94 ended on July 2018.
I'm going to file for her this month April 2019.
She has overstayed for more than 180 days.
My plan was to initially file i130 only then if it's approved followed by i485.
But I've read somewhere that since she overstayed I need to file i130 and i485 concurrently.
If I didn't it would look suspicious.
is this correct?
Would it really be better if they were filed together?

thanks so much

[bobm445]

File both together, and don't forget about EAD and advanced parole while your at it. Free to file them with adjustment of status. Good Luck

[Kencav]

File both together, and don't forget about EAD and advanced parole while your at it. Free to file them with adjustment of status. Good Luck

But will it really be that bad if I only filed i130 for her?

[Totellthetruth]

My wife and I got married last year June 2018.
Her i94 ended on July 2018.
I'm going to file for her this month April 2019.
She has overstayed for more than 180 days.
My plan was to initially file i130 only then if it's approved followed by i485.
But I've read somewhere that since she overstayed I need to file i130 and i485 concurrently.
If I didn't it would look suspicious.
is this correct?
Would it really be better if they were filed together?

thanks so much

Hi

Your first mistake was not to apply for I-485 on July 2018 right after you got married on June of 2018 , that is 9 months ..THAT WAS A MISTAKE but it happens due to many reasons.
but you made her an overstay or unlawful presence and like most you were thinking that ..oh we re married so shes safe so we can apply whenever we want ..,... NO..........that doesn't work like that...than you let 9 months go by and did not apply for AOS ,a bad move but stil fine,,, the only difference is that things gets harder and against the USCIS which makes them against the applicant .
so the first thing you must consider is her NATIONLITY and most people thinks that they are in the same shoe and facing the same case... ... NO
and THATS WHY USCIS MOVES ON CASE BY CASE PRINCIPLE .....

REMEMBER,,,,,,,,,,,,,,,IN IMMIGRATION PURPOSES YOU HAVE NO CHOICES OR PLANS, USCIS DECIDES ABOUT HOW YOUR CASE WOULD START AND END ... NOT YOU ..
so you saying you were initially planning to do this and that is baseless ,IF YOU DONT KNOW HOW IT WORKS, you go to a LAWYER but never make a wrong move which will affect her life and destiny ..
first of all you need to consider how she entered to usa. ? with a visa ? or esta ? or EWI ( entered without inspection )
since you mentioned that she had I-94 meaning she entered as inspected..
whats her entry visa ?
B1/B2
F-1
Jvisa
EASTA ...

So YOU ARE SAYING will it be that bad if you only file I-130 for her ?
YOU COULD AND YOU CAN BUT ....... SHES ALREADY IN UNLAWFUL POSITION THAT WOULD MAKE HER CASE HARDER . because if she departs u,s to get an immigrant visa ,she will face her overstay or unlawful presence in the usa therefore usa embassy will first ask for a waiver and not issue an immigrant visa.
you can file only I-130 IF..... you want her to apply for an immigrant visa in overseas in usa embassy and if USCIS accept the marriage and approve it they will issue a deprture date for her to go back to her country for an immigrant visa .but YOU CANT DO THAT . because shes already ( depending on her entry visa either an overstay or unlawful presence in the u,s.)
So you could only do that if she was still legal and married her in the usa or you married her in her country and applied for I- -130
so since shes NOT LEGAL you only have one choice which is I-485 AOS...ADJUSTMENT OF STATUS..

So now that you got married on june 2018 and she become an unlawful presence on july 2018 the USCIS may or may not accept your I-485 for Adjustment of Status . using it as an overstay ( if she entered to u.s using a visa like B1/B2 or F1 or any kind of u,s visa issued by u,s embassy in overseas.) if entered as ESTA ( esta is not a visa but a waiver of visa meaning no visa, meaning not overstay but unlawful presence . these two facts will effect the way your application process.

So again :

1- YOU WILL ONLY BE CONSIDERED AS AN OVER STAY IF YOU ENTERED TO USA WITH A VISA AND STAYED BEYOND YOUR I-94 DATE LIMIT

2- IF YOU ENTERED U,S WITH AN ESTA YOU WILL NOT BE CONISDERED AS AN OVER STAY BECAUSE YOU WERE NEVER ISSUED A U,S VISA. BUT WILL BE CONSIDERED AS AN UNLAWFUL PRESENCE ...

in that case ,you can either go ahead and apply for AOS using I-485 along with I-130 alien relative and I-765 EAD permit and I-131 Advance parol permit, if USCIS accepts it ( based on married to u,s citizen will not be considered as overstays or unlawful presence ) they will send you 3 NOA - notice of actons showing that application and your case is accepted and in process .
IN SOME CASE IF THEY DONT ...than they will ask for a waiver and after that they will ask you to apply for AOS. but usually people who are married to u,s citizens may not need a waiver BUT YOU NEVER KNOW... if USCIS ask for a waiver than an immigration lawyer will be a MUST or at least you need to hear and have an advice from an immigration lawyer,

IF everything goes well and AOS is accepted :

They first will send you the NOA and few months later it will follow with an interview NOA in USCIS and during the interview USCIS may accept the who whole thing and approve it or they may DENY THE WHOLE THING or just approve the I-130 and tell you that they will make a decision on the rest of I-485 application . than it will follow with a NOA for your wife to go to USCIS to get her fingerprints and picture taken, after than within 90 days she will receive an EAD card and that CARD is usually a combo card as EAD/ AP COMBO BUT sometimes they may not allow AP / ADVANCE PAROL so in that case the card will be just EAD and an overseas travel can not be done

EAD card is good for one year and just before the end of that USCIS informs you of their decision either to accept it or deny the I-485 .if accepted the alien would receive his/her Green card in the mail, if denied the person must depart from the U,S within 33 days .if the NOA allows to MTR -MOTION TO REOPEN or REFILE another AOS application


Good Luck

[newacct]

But will it really be that bad if I only filed i130 for her?

There is no requirement that you file I-130 and I-485 together, but why would you file later when you can file earlier? The longer she waits until filing I-485, the longer she remains deportable. If she is not ready to file I-485 now, there is no benefit to filing I-130 first; just wait until she is ready to file I-485 to file both I-130 and I-485 together.

The reason people are having trouble understanding your question is, why are you trying to file things later? Most people on here are usually asking how soon they can file so that they are safe from deportation, not how late. So what is your reasoning?