Navigating U.S. immigration can be complex, particularly when trying to streamline the process for family members, a common question is whether you can file Form I-130 and Form I-485 at the same time, a process known as concurrent filing or one-step adjustment of status.
Form I-130 which is the Petition for Alien Relative, is the first step for citizens or lawful permanent residents to start the immigration process for a family member In many cases, immigrants must wait for it to be approved before applying for a green card but there are situations where you can file both forms concurrently. This guide will explain who can do this and the pros and cons of this approach.
Who Can File?
This is possible in specific situations:
Immediate Relatives of U.S. Citizens:
If you are a U.S. citizen sponsoring a spouse, parent, or unmarried child under 21 who is already in the country, you can file both forms simultaneously. This category is exempt from visa caps, so there’s no waiting list.
Certain Preference Relatives:
Spouses and children of U.S. lawful permanent residents may also file concurrently if they are in the U.S. when their priority date becomes current. The Visa Bulletin will indicate if a category is “current,” meaning there are no waiting lists at that moment.
Specific Employment-Based Categories:
While this guide focuses on family-based petitions, some employment-based applicants can also use concurrent filing. For instance, the EB-5 Reform and Integrity Act allows certain investors and their families to file concurrently.
Pros and Cons of Concurrent Filing
Advantages
- Speed: Filing both forms together can significantly speed up the process since USCIS processes them simultaneously.
- Convenience: It can be more straightforward to manage all paperwork at once rather than in stages.
- Immediate Work Authorization: Applicants can apply for work authorization and travel documents concurrently, allowing them to work and travel while their application is pending.
Disadvantages
- Risk of Denial: If the I-130 petition is denied, the I-485 application will also be denied, leading to potential removal proceedings.
- High Stakes: Filing both forms means higher upfront costs and more paperwork, so if there’s any doubt about eligibility, it might be wiser to wait for I-130 approval first.
- Complexity: The process requires meticulous documentation and a strong understanding of eligibility requirements. Missing documents or mistakes can delay or jeopardize the application.
Understanding the Green Card Process
There are two main routes to obtaining a green card:
- Adjustment of Status: For those already in the U.S. who entered legally and maintained lawful status, this process allows you to apply for a green card without leaving the country.
- Consular Processing: For those outside the U.S., this involves applying for an immigrant visa at a U.S. consulate abroad and entering the U.S. as a permanent resident.
- Concurrent filing is only available through adjustment of status for those already in the U.S.
Special Considerations
Immediate Relatives:
For spouses, parents, and unmarried children under 21 of U.S. citizens, there’s no annual limit on green cards, making concurrent filing straightforward.
Preference Relatives:
For other family members, such as siblings of U.S. citizens or spouses and children of LPRs, the availability of visas depends on priority dates and annual limits.
Exceptions:
Immediate relatives who entered the U.S. legally but overstayed might still be eligible for adjustment of status, but this area is legally complex and requires careful navigation.
Seeking Legal Assistance
Given the complexities and potential pitfalls of the immigration process, consulting an experienced immigration attorney is highly recommended. An attorney can help:
- Assess your eligibility.
- Prepare and file the necessary paperwork.
- Navigate the U.S. immigration bureaucracy.
- Draft persuasive cover letters.
- Represent you at a USCIS interview.
While U.S. immigration laws can be intricate, understanding the conditions under which you can file Form I-130 and Form I-485 concurrently can simplify the process of family reunification. By considering the advantages and potential drawbacks, and seeking professional legal advice, you can make informed decisions to help your loved ones join you in the United States.
