I-130 vs. I-485: Which Form Should You File First in Family-Based Immigration?

Dreams of reuniting with loved ones in the land of opportunity often hinge on walking the potentially perplexing path of family-based immigration.

Amidst the many requirements, Form I-130 and Form I-485 stand out as key documents, each playing a pivotal role in the immigration process. But which should you tackle first? This article will unravel the mysteries surrounding these forms, equipping you with the knowledge needed to make strategic decisions.

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, also known as the "Petition for Alien Relative," is a crucial initial step in family-based immigration to the United States.

This form is filed by a sponsoring relative who is either a U.S. citizen or a lawful permanent resident (LPR) to establish the relationship with the intended immigrant. It serves to prove the familial relationship between the petitioner and the beneficiary, laying the groundwork for the immigrant's eventual lawful residency or visa issuance.

The form requires detailed information about both the petitioner and the beneficiary, including biographical data, relationship details, and supporting documentation to verify the claimed relationship.

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. 

The form collects biographical data, immigration history, and background information. It requires evidence of eligibility, including medical examination results, financial support, and proof of legal entry. Successful submission leads to a personal interview to determine eligibility for adjustment of status.

Factors to Consider when Deciding Which Form to File First

Family-based immigration requires several momentous decisions, one of which is whether to file Form I-130 or I-485 first. Understanding the factors influencing this decision is imperative for a successful application. Here are some central considerations to help you make the right choice for your circumstances.

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 doesn’t 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 in the United States legally (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.