Memphis immigration lawyer Ari Sauer provides news and information on US immigration law.
QUESTION: My cousin is the unmarried son, over the age of 21, of a US citizen. His mother filed an I-130 immigrant visa petition for him in October of 2002, while she was a Permanent Resident (second preference category- F2B). His mother has since naturalized and become a US citizen (which converts him to the first preference category- F1). According to the Visa Bulletin, his priority date under the First Preference became current last month. The I-130 petition is still pending. Can he now file an I-485, application for adjustment of status, with just the I-130 petition filling receipt, or does he have to wait for the I-130 to be approved before he can file the I-485 application?
ANSWER: You do not have to wait for the I-130 petition to be approved to be able to file the I-485 application for adjustment of status. Where a visa is immediately available (such as for an Immediate Relative of a US citizen) you can file the I-485 application concurrently with the I-130 immigrant petition. Where an I-130 petition has been pending long enough that a visa is now available under the Visa Bulletin (see my 6/9/09 posting on how to read the Bulletin) you can file the I-485 application with a copy of the Receipt Notice for the pending I-130 petition.
Assuming your cousin is otherwise eligible to file for adjustment of status, he can file the I-485 application now with a copy of the I-130 Receipt Notice and a copy of his mother’s Certificate of Naturalization.
If your cousin is not eligible to file for adjustment of status (for example if he has failed to maintain his status and is now out of status), he may be eligible to apply for an immigrant visa at the US consular post in his home country, once the I-130 petition is approved. To have USCIS adjudicate the I-130, your cousin would send a copy of his mother’s certificate of naturalization along with a copy of the I-130 Receipt Notice, to the USCIS Service Center where the petition is pending.
Since it sounds like your cousin may no longer be in status, and the I-130 petition does not seem to grant him the ability to file under the 245(i) “amnesty” as it was filed after April of 2001, your cousin should consult with an attorney before filing an I-485 application or leaving the country to apply for a visa at the U.S. consular post.