Must a I-130 be accompanied by I-485?

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USHusband

Registered Users (C)
All,

I am a USC, recently married my UK citizen wife here in the US while she was on her L-1 visa (special type of work visa similar to H-1). She then quit her job and lost the L-1 status, but is currently visiting me here under the WVP.

I filed a I-130 to apply for a green card for her, and received my first NOA in July 2008. I thought everything was fine, but after reading some posts, I think I might be slowing the process down by not also filing a I-485 now. The USCIS materials led me to think that since my wife is technically an overseas resident right now, I only had to file a I-130 because you only file a I-485 concurrently with a I-130 if your relative is already legally in the US (she has no current legal right to reside in the US, because she's only 'visiting' on a WVP). However, now it seems to me that after she gets the I-130 relative visa to GET in the US, I would have to file a I-485 on her behalf anyway.

So my questions: Should I file a I-485 for her now? Will they not accept it since it wasn't filed concurrently, and she also hasn't been approved for a relative visa? If I should file the I-485, where do I file - in the place where standalone I-485's are filed, or where they would've been filed concurrently with the I-130?

followup question: Should I also file the I-864 (Affidavit of Support) now? Or should I wait until the USCIS sends me the form and asks for it?

I tried looking for these specific answers but couldn't. Sorry if this has been answered before, but I'm quite desperate for an answer, and I don't want the USCIS to come back to me in 4 months just to tell me that I could've made it faster by filing the I-485 sooner. :confused:

Thanks so much!!
 
USHusband said:
All,

I am a USC, recently married my UK citizen wife here in the US while she was on her L-1 visa (special type of work visa similar to H-1). She then quit her job and lost the L-1 status, but is currently visiting me here under the WVP.

I filed a I-130 to apply for a green card for her, and received my first NOA in July 2008. I thought everything was fine, but after reading some posts, I think I might be slowing the process down by not also filing a I-485 now. The USCIS materials led me to think that since my wife is technically an overseas resident right now, I only had to file a I-130 because you only file a I-485 concurrently with a I-130 if your relative is already legally in the US (she has no current legal right to reside in the US, because she's only 'visiting' on a WVP). However, now it seems to me that after she gets the I-130 relative visa to GET in the US, I would have to file a I-485 on her behalf anyway.

So my questions: Should I file a I-485 for her now? Will they not accept it since it wasn't filed concurrently, and she also hasn't been approved for a relative visa? If I should file the I-485, where do I file - in the place where standalone I-485's are filed, or where they would've been filed concurrently with the I-130?

followup question: Should I also file the I-864 (Affidavit of Support) now? Or should I wait until the USCIS sends me the form and asks for it?

I tried looking for these specific answers but couldn't. Sorry if this has been answered before, but I'm quite desperate for an answer, and I don't want the USCIS to come back to me in 4 months just to tell me that I could've made it faster by filing the I-485 sooner. :confused:

Thanks so much!!
Click to expand...


I'm not much of an expert, but here is what I know-

The I-485 CANNOT be filed by you as the 'petitioner' for your spouse, she needs to file it for herself as the 'alien relative'. The only forms you file as the petitioner USC spouse are the I-130 and the I-864/864EZ. See this sticky for more instructions on how to do this.

I think she can still apply to adjust her status, you can correct me if wrong. From page 2 of the I-485 instructions:

"You are not eligible for adjustment ofstatus if any of the following apply to you:

11. You were admitted to the United States as a visitor under the Visa Waiver Program, unless you are applying because you are an immediate relative of a U.S. citizen (parent, spouse, widow, widower or unmarried childunder 21 years old)"
 
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I just called the USCIS, and actually spoke to a rep! She told me that since I didn't actually intend on having my wife come in on the WVP and stay, we CAN now file a I-485. The complication is, my wife really wants to go to her friend's wedding in December, where she will be a bridesmaid. If she leaves before the I-131 (travel permission) gets approved, then a I-485 that I file now would be invalid. I'm going to go research the approval times for I-131's, but...thanks for your help!!
 
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I-131 takes 60-90 days to be approved, correct. However, I have at least 1 friend who travelled out of USA with I-131 pending, and didn't have any issues returning to US on an unexpired visa.
 
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