If the I-130 is filed online and I-485 is filed on paper, is it still filed concurrently?

[pigrew 32]

1 hour ago, lunajo said:

Not sure if anyone will know the answer to this: 

 

I am currently in the US already with my fiance with is US citizen. We are planning to get married and start the AOS process. 

 

If I submit I-130 form online and get the receipt number/ NOA1, does that mean that my application has been accepted and that I can stay in US to complete the AOS process?

No, it does not.

 

Submission of the I-485 is required in order to maintain within the country. My understanding is that all that's required is the submission of the I-485, but not the acceptance, though you won't have any proof until the acceptance notice is received. Note that some period of out-of-status stay is waived in the case of a I-485 based on a marriage to a US citizen (but not to marriage to a LPR).

 

Also note that you must be married prior to filing an I-130 based on marriage, and also that it's detrimental to one's case to get married too soon after entering the USA (within 90 days) if on a non-immigrant visa.

 

(I'm not a lawyer. The above is based on my personal experience with submitting an I-130/I-485, could be wrong, and is subject to change at the whim of USCIS.)

[lunajo 1]

3 minutes ago, pigrew said:

My understanding is that all that's required is the submission of the I-485, but not the acceptance, though you won't have any proof until the acceptance notice is received. Note that some period of out-of-status stay is waived in the case of a I-485 based on a marriage to a US citizen (but not to marriage to a LPR).

 

If this is the case, that would be great. My ESTA is valid until September 7 and we are planning to submit the paperwork in the week of August 24 (I-130 online and mail out I-485). If it means that I can continue to stay in the US once I send out the paperwork, it would mean a lot. 

[pigrew 32]

4 minutes ago, lunajo said:

 

If this is the case, that would be great. My ESTA is valid until September 7 and we are planning to submit the paperwork in the week of August 24 (I-130 online and mail out I-485). If it means that I can continue to stay in the US once I send out the paperwork, it would mean a lot. 

Another important caveat is that if you leave the country after filing an I-485, the application will be considered abandoned (but the I-130 will remain in processing). After marriage, you might not be allowed to reenter the USA with your visa (since our guards may assume you are planning to immigrate). Also, don't pay attention to your visa expiration date. Pay attention to the date on your I-90 form (from DHS's website or given to you at the border). I think you will be subject to the 90 day guideline for I-485, so you should plan to be married more than 90 days after entry into the USA.

[wagecuck3 31]

15 minutes ago, pigrew said:

Another important caveat is that if you leave the country after filing an I-485, the application will be considered abandoned (but the I-130 will remain in processing). After marriage, you might not be allowed to reenter the USA with your visa (since our guards may assume you are planning to immigrate). Also, don't pay attention to your visa expiration date. Pay attention to the date on your I-90 form (from DHS's website or given to you at the border). I think you will be subject to the 90 day guideline for I-485, so you should plan to be married more than 90 days after entry into the USA.

For VWP entrants, it's tricky. They only get admitted for 90 days, so they should make an effort to get married and file for adjustment of status before that 90 day period has expired. It's still possible to file after the I-94 has expired, but it's more risky. A VWP entrant cannot contest removal on any grounds other than asylum. If you enter under VWP and you are placed in removal proceedings, then you cannot obtain relief simply because you have a pending adjustment application.

 

Immediate relative adjustments cannot be denied simply on the basis that they were filed too early and suggested preconceived intent. There is BIA precedent for this. So definitely do it before 90 days, not after.

[HRQX 4,145]

On 8/11/2020 at 12:52 PM, pigrew said:

I think you will be subject to the 90 day guideline for I-485

I strongly disagree. USCIS clearly states: "Although referred to by DOS as a “rule” in its Foreign Affairs Manual (FAM), the 90-day rule is not a regulation. It is DOS guidance to its officers, and as such, the 90-day rule is not binding on USCIS officers." https://www.uscis.gov/policy-manual/volume-8-part-j-chapter-3