Navigating U.S. immigration can be challenging, especially when it comes to understanding when you can file the Petition for Alien Relative at the same time with a Green Card application. This article will break down this process and highlight the pros and cons of concurrent filing.
Understanding Form I-130 and Its Importance
It is an important document for U.S. citizens and lawful permanent residents (LPRs) who want to help their family members and usually, USCIS must approve it before the immigrant can proceed with their application.
The Role
Form I-130 serves two main purposes:
- Verifying Petitioner’s Status: Confirms that the petitioner is a U.S. citizen or a permanent resident.
- Establishing Family Relationship: Proves the legitimate family relationship between the petitioner and the beneficiary.
- Accurate and complete Form I-130 documentation is essential for showing that the beneficiary is eligible for an immigrant visa and Green Card.
Why a Petition is Typically Filed First
In most cases, Form I-130 is submitted before the Green Card application because USCIS needs time to verify the petitioner’s eligibility and the family relationship. This verification process can take a while, but it doesn’t necessarily delay the Green Card application significantly unless the beneficiary is not an “immediate relative” of a U.S. citizen (like a spouse, parent, or unmarried minor child).
Two Paths to a Green Card Application
To understand when you can file Form I-130 concurrently with a Green Card application, it’s essential to recognize the two main routes to a Green Card:
- Adjustment of Status: For those already living in the U.S. legally. This allows them to transition to permanent residency without leaving the country.
- Consular Processing: For those applying from outside the U.S. This involves getting an immigrant visa at a U.S. consulate overseas and then entering the U.S. as a permanent resident.
- Concurrent filing (submitting Form I-130 along with other application components) is only possible for Adjustment of Status. For Consular Processing, the beneficiary must wait for USCIS to approve Form I-130 first.
One-Step Adjustment: Who Qualifies?
It refers to filing Form I-130 simultaneously with Form I-485 (Application to Register Permanent Residence or Adjust Status) and other necessary documents. This is possible under specific conditions:
Immediate Availability of Immigrant Visa Number
An immigrant visa number must be available immediately for this to work. Immediate relatives of U.S. citizens (spouses, parents, and unmarried children under 21) usually fall into this category as there are no limits on the number of Green Cards available for them.
Eligibility for Adjustment of Status
The beneficiary must have entered the U.S. legally and be residing there legally. Exceptions exist, especially for immediate relatives who initially entered legally but overstayed.
Specific Scenarios for One-Step Adjustment
- Spouses of U.S. Citizens: If a U.S. citizen petitions for a spouse already in the U.S. on a valid visa (e.g., tourist or student visa), they can file Forms I-130 and I-485 concurrently.
- Other Immediate Relatives: Parents and unmarried children under 21 of U.S. citizens can also take advantage of one-step adjustment if they meet the criteria.
- Victims of Abuse: Those filing Form I-360 as victims of abuse by a U.S. citizen spouse or parent can use a one-step adjustment if they qualify.
Additional Considerations
While one-step adjustment can streamline the Green Card process, it has its drawbacks:
Inadmissibility Issues
The immigrant must be admissible to the U.S. Problems like unlawful entry or past criminal/immigration violations can affect eligibility. Filing for a one-step adjustment in these cases might lead to removal proceedings and financial loss.
Documentation Challenges
If proving the family relationship is difficult, it may be wise to get Form I-130 approval first. This is especially true for unconventional marriages or cases with limited evidence.
Seeking Legal Guidance
The U.S. immigration system is complex, and making the right decisions is crucial. Consulting with an experienced immigration attorney can help you understand your situation, plan strategically, handle the paperwork, and guide you through the process.
The timing of filing Form I-130 concurrently with a Green Card application depends on factors like the relationship between the petitioner and the immigrant and their eligibility for adjustment of status. Understanding these nuances and seeking legal advice can greatly facilitate your immigration journey.
