Dreams of reuniting with loved ones in the land of opportunity often hinge on the successful results of family-based immigration procedures.
Among the many requirements, you’ve probably stumbled upon Form I-130 and Form I-485, each of which plays a pivotal role in the immigration process. But which should you take care of first? It depends on the beneficiary's location, legal status, and eligibility.
It’s generally recommended to file Form I-130 first. However, there are a couple of alternative scenarios that are worth considering. Join us as we explore the intricacies of these two crucial forms.
Whether you're a petitioner looking to bring your family closer to you or a beneficiary yearning for a new chapter in America, we'll decipher the complexities of Forms I-130 I-485 and pave the way for your immigration success.
Form I-130, Petition for Alien Relative
Form I-130, Petition for Alien Relative, is the cornerstone of family-based immigration to the U.S. It’s used to establish a qualifying family relationship between a U.S. citizen or lawful permanent resident (LPR) and a foreign national relative. Filing this form is the first step in many immigration cases, setting the stage for the issuance of a green card or immigrant visa.
Required Documentation
When filing Form I-130, you must submit evidence substantiating the qualifying relationship.
Examples include:
- A marriage certificate for spouses.
- Birth certificates for children or parents.
- Documentation of the petitioner’s legal status, such as a U.S. passport or green card.
- Evidence of shared life, such as photos, correspondence, or financial documents (especially for marriage-based petitions).
Processing Steps
- Complete and file Form I-130 with U.S. Citizenship and Immigration Services (USCIS).
- Submit supporting documentation to establish the relationship.
- Await approval, which may take 10–14 months, depending on processing times and family category.
Once approved, your petition will be forwarded to the National Visa Center (NVC) for further steps, such as consular processing.
Form I-485, Application to Register Permanent Residence or Adjust Status
Form I-485, Application to Register Permanent Residence or Adjust Status, is typically filed after Form I-130 is approved. It allows eligible immigrants already in the U.S. to apply for permanent resident status (green card) without having to return to their home country for processing.
Required Documentation
Form I-485 requires comprehensive evidence to prove eligibility, including:
- A completed I-485 application.
- A medical examination conducted by a USCIS-approved physician.
- Proof of financial stability, such as an Affidavit of Support (form I-864).
- Documentation of legal entry into the U.S., such as an I-94 arrival record or visa stamp.
- Additional supporting documents, including a valid passport and any relevant immigration history.
Processing Steps
- File Form I-485 along with supporting evidence and the required filing fee.
- Attend a biometrics appointment for fingerprinting and background checks.
- Participate in an interview with USCIS to verify your eligibility.
- Await approval and receive your green card, which will officially grant you lawful permanent resident status.
Eligibility Requirements
- The applicant must be physically present in the U.S.
- A valid immigrant visa number must be available.
- Applicants must meet all other requirements, including being free from certain inadmissibility grounds (e.g., criminal history, public charge concerns).
Factors to Consider When Deciding
Family-based immigration requires several momentous decisions, one of which is whether to file Form I-130 or I-485 first.
For family-based immigration, filing Form I-130 is almost always the first step. Submitting Form I-485 first is rare because Form I-130 typically establishes the family relationship required for adjustment of status.
Relationship with the U.S. Citizen or Permanent Resident Sponsor
The nature of the relationship between the applicant and the U.S. citizen or permanent resident sponsor is one of the most significant factors in determining which form to file first.
If the relationship is a marital one and the applicant is the spouse of a U.S. citizen or permanent resident, filing Form I-130 is typically the initial step. This establishes the familial relationship and kickstarts the process of obtaining a green card.
That said, other situations may call for a different course. In some cases, such as when the child is already in the U.S. and eligible to adjust status, Form I-485 might be filed concurrently with or before the I-130. In sibling sponsorship cases where the U.S. citizen sibling is the sponsor, the I-130 is the primary form to initiate the process.
Applicant's Immigration Status
If the applicant resides outside the U.S. and does not currently hold valid immigration status within the country, it may be advisable to start with Form I-130.
Since this form establishes the familial relationship between the applicant and the United States-based sponsor, it lays the groundwork for future immigration processes. Once the I-130 petition is approved, the applicant can proceed with consular processing to obtain an immigrant visa for entry into the U.S.
However, if the applicant is already in the U.S. on a nonimmigrant visa or through the Visa Waiver Program, they may be eligible to file Form I-485 concurrently with or shortly after Form I-130. Doing so allows the applicant to adjust their status to that of a lawful permanent resident without having to leave the country.
For example, if someone is in the U.S. on an F-1 student visa and wishes to obtain permanent residency by marrying a U.S. citizen, they could potentially file both forms simultaneously, streamlining the process and avoiding the need for consular processing abroad.
Applicant's Current Location
If the applicant already resides in the U.S., filing Form I-485 concurrently with or shortly after Form I-130 may be the most expedient option. This allows the applicant to remain in the country while their adjustment of status application is pending, minimizing the time spent separated from family and facilitating a smoother transition to permanent residency.
Conversely, if the applicant resides outside the U.S., it may be necessary to initiate the immigration process by filing Form I-130.
For instance, if a U.S. citizen wanted to sponsor their parent for permanent residency, the parent would typically need to file Form I-130 from their country of residence before undergoing consular processing for an immigrant visa.
Processing Times and Priority Dates
It's also wise to account for processing times and priority dates when deciding whether to file Form I-130 or I-485 first.
Form I-130 typically has a shorter processing time than Form I-485. As of March 2024, United States Citizenship and Immigration Services (USCIS) reported processing times for Form I-130 ranging from 10 to 14 months, while processing times for Form I-485 varied widely depending on the applicant's category and location, with some cases taking over a year to adjudicate.
Therefore, if the applicant's priority date is current (meaning there's an available visa number for their category), it may be advantageous to file Form I-485 first to accelerate the adjustment-of-status process and potentially shorten the overall timeline.
Priority dates are particularly relevant for applicants subject to visa backlogs, such as those in family-sponsored or employment-based preference categories.
For example, when a U.S. citizen sponsors a sibling, their priority date is established based on the filing date of the Form I-130 petition. If the visa bulletin indicates that visa numbers are available for the sibling's category and priority date, it may be prudent to proceed with filing Form I-485 to take advantage of the current priority date and avoid potential processing delays.
Situation-Specific Recommendations
The order in which you submit Forms I-130 and I-485 can greatly influence the ensuing process. The following section will explore a few different scenarios and provide recommendations to make a well-informed choice tailored to your specific circumstances.
Scenario 1: Applicant Residing Outside the U.S.
For applicants residing outside the United States, the process typically begins with filing Form I-130. Upon approval, the case is forwarded to the National Visa Center (NVC) for further review and processing.
Once the NVC receives the approved I-130, the petitioner and beneficiary will be informed about the documentation and fees required to proceed. This includes the submission of Form DS-260 and supporting documents.
After completing these steps and confirming the availability of a visa number (if applicable), the beneficiary will attend an interview at the U.S. consulate or embassy in their home country. If the interview goes smoothly and the beneficiary meets all requirements, they may receive an immigrant visa, allowing them to enter the United States as a lawful permanent resident.
In this scenario, Form I-485 doesn't apply because the beneficiary is outside the U.S. Once they enter the country with an immigrant visa, they can file Form I-485 to adjust their status to that of a lawful permanent resident.
Recommendation: If the beneficiary resides outside the United States, begin the immigration process by filing Form I-130. This paves the way for them to obtain an immigrant visa abroad.
Scenario 2: Applicant Already in the U.S. with Legal Status
For applicants who are already legally in the United States (such as those holding a valid nonimmigrant visa or beneficiaries of a previously approved immigrant petition), Form I-485 is the appropriate form to file.
In this scenario, the petitioner, a U.S. citizen or lawful permanent resident, files Form I-130 concurrently with Form I-485, provided a visa number is immediately available. Concurrent filing allows the beneficiary to apply for adjustment of status while their I-130 is pending.
If the priority date is current (meaning a visa number is available based on the beneficiary's preference category and country of origin), the beneficiary can file both forms at the same time. Concurrent filing will expedite the process of obtaining lawful permanent residency without the need for them to leave the country.
Upon submission of both forms, USCIS will process the I-485 application, conduct a background check, and schedule a biometrics appointment. Subsequently, an interview will be scheduled to verify the information provided and determine the beneficiary's eligibility for adjustment of status. If approved, they'll receive a green card, granting them lawful permanent resident status.
Recommendation: For beneficiaries already in the United States, filing Forms I-130 and I-485 simultaneously is often the most efficient option, especially when a visa number is immediately available. This course allows for adjustment of status without the need for the beneficiary to depart the country.
Scenario 3: Applicant Already in the U.S. Without Legal Status
Things become more complex if the applicant is already in the U.S. but lacks legal status. In this scenario, the petitioner must still file Form I-130 to establish the familial relationship. However, concurrent filing of Form I-485 may not be feasible due to the beneficiary's lack of legal status. Instead, the beneficiary may need to explore other options to adjust their status.
Depending on individual circumstances, this may involve applying for a provisional waiver of unlawful presence (Form I-601A) if eligible, leaving the U.S. and applying for an immigrant visa abroad after I-130 approval, and attending an immigrant visa interview at a U.S. consulate or embassy in their home country. However, it's important to note that departure from the U.S. can trigger a bar to re-entry for individuals who have accrued unlawful presence.
Alternatively, beneficiaries might explore alternative avenues, such as seeking asylum or obtaining a U visa if they're victims of certain crimes. Each case is unique, so it's a good idea to consult a knowledgeable immigration attorney to determine the most suitable course of action.
Recommendation: For beneficiaries already in the U.S. without legal status, seeking guidance from an experienced immigration attorney is essential to explore available options. While Form I-130 is still necessary to establish a familial relationship, adjusting the candidate's status may require additional steps and procedures.
FAQ
Can I file form I-130 and form I-485 simultaneously?
Yes. Immigration law permits you to file Form I-130, Petition for Alien Relative, and Form I-485, Application to Register Permanent Residence or Adjust Status, concurrently if you’re an immediate relative of a U.S. citizen or lawful permanent resident and meet the eligibility criteria.
This process allows you to submit your applications together through your USCIS online account or by mail to the appropriate filing location, facilitating quicker processing.
Do I need an attorney to file forms I-130 and I-485?
While it's not strictly necessary to have an attorney for immigration services, seeking qualified legal assistance can ensure the accuracy and completeness of your application, especially if you have concerns about your eligibility or encounter complexities related to a family relationship.
Can I appeal if my form I-130 or I-485 is denied?
You generally have the right to appeal if your Form I-130 or I-485 is denied. Appeals must be filed with USCIS’s Administrative Appeals Office (AAO) for Form I-130 and with the Justice Department’s Board of Immigration Appeals (BIA) for Form I-485. However, specific procedures and deadlines may vary depending on individual circumstances.
Get Professional Assistance Putting Your Documents in Order
In most cases, filing Form I-130 is the first step for establishing the family relationship, especially if the beneficiary resides outside the U.S. For those already in the country on a valid visa, filing both forms concurrently can expedite the process. However, additional steps may be necessary before filing Form I-485 if the beneficiary lacks legal status.
The seasoned immigration lawyers at SimVisa are here to guide you through this process efficiently. By choosing our firm, you gain access to unparalleled knowledge and support, ensuring that your application is handled with the care and precision it deserves.
Take the first step toward a brighter future today by contacting us to discuss your immigration needs.