Filing I 485 while awaiting I 130 approval

[powerpuff 5,985]

4 minutes ago, Salvador&Julissa said:

So what category is he if I filed I 130 and he is in USA?

He is currently an overstay on B2 visa. He is out of status and subject to deportation.

Edited September 20, 2022 by powerpuff

[Crazy Cat 39,674]

17 hours ago, Salvador&Julissa said:

So what category is he if I filed I 130 and he is in USA?

Right now, he is subject to removal.  In 3 more months, he will incur a ban if he, then, leaves the US.

Edited September 21, 2022 by Crazy Cat

[Letspaintcookies 2,235]

Just now, Salvador&Julissa said:

So what category is he if I filed I 130 and he is in USA?

That depends on what you gonna do now. If he stays here and file for AOS he won't get a visa but a Greencard since there's no visa needed to enter the US obviously. If he goes home he'll apply for a CR-1 and will probably get an IR-1 since Mexico is horrible backlogged and it will probably be two years of being married until he enters the US again.

[Salvador&Julissa 5]

4 minutes ago, Crazy Cat said:

Right now, he is subject to removal.  In 3 more months, he will incur a ban if he leaves the US.

Ah ok so then I will submit the I 485. Thanks

[Crazy Cat 39,674]

IMO, he needs to either leave the US to pursue a spousal visa before he incurs a ban or he needs to file the I-485 package. 

[Crazy Cat 39,674]

1 minute ago, Salvador&Julissa said:

Ah ok so then I will submit the I 485. Thanks

Follow this guide.  Include the receipt you received when you filed the I-130:

 

Step-by-Step Guide on Filing an I-130 for a Spouse Inside the US - US Immigration & Visa Guides - VisaJourney

[Crazy Cat 39,674]

The I-130 will be the basis for the I-485.

[Salvador&Julissa 5]

5 minutes ago, Letspaintcookies said:

That depends on what you gonna do now. If he stays here and file for AOS he won't get a visa but a Greencard since there's no visa needed to enter the US obviously. If he goes home he'll apply for a CR-1 and will probably get an IR-1 since Mexico is horrible backlogged and it will probably be two years of being married until he enters the US again.

Ok so if I tell him to stay put then I just do the Adjustment of Status. That's the I 485 right? That is the one my attorney is asking me to send in. Or for us to send in.

[Crazy Cat 39,674]

2 minutes ago, Salvador&Julissa said:

Ok so if I tell him to stay put then I just do the Adjustment of Status. That's the I 485 right? That is the one my attorney is asking me to send in. Or for us to send in.

Yes, the I-485 is the package for adjustment of status.  Carefully read the guide.  It is a long process, but he will be granted authorized stay in the US.  He cannot work or travel outside the US without proper authorization as @powerpuff explained above.

Edited September 20, 2022 by Crazy Cat

[powerpuff 5,985]

2 minutes ago, Salvador&Julissa said:

Ok so if I tell him to stay put then I just do the Adjustment of Status. That's the I 485 right? That is the one my attorney is asking me to send in. Or for us to send in.

Follow the guide provided above. There are additional forms you can apply for free of charge to receive EAD and/or AP when you file for I-485.

[SteveInBostonI130 3,328]

33 minutes ago, Salvador&Julissa said:

Ok so if I tell him to stay put then I just do the Adjustment of Status. That's the I 485 right? That is the one my attorney is asking me to send in. Or for us to send in.

 

Hi,

 

Looks like I am late in joining the conversation.  With the current state of affairs, I would recommend adjustment of status.

1. You stated he has children in NM.  After you file the I-485 (plus I-864 and optionally I-765 and I-131), he will be authorized to stay while the I-485 is being processed.  He can visit his kids in NM.
2. If you decide to pursue a CR1/IR1 visa, then he will need to leave as soon as possible.  His visa will be cancelled and he will not be able to return to the US to visit you or any of his family, until he gets the spouse visa.  This will take about 2 years from current timelines.
3. The downside of AOS is that he will not be able to work until the I-765 is approved and he will not be able to travel outside the US until the I-131 is approved.  Slightly good news is that I-765 processing has been speeding up recently and may take just a few months.  Perhaps 4-8 months is realistic.  I-131 still seems to take about 8+ months.

 

Good luck, and as others have said, look around for a better lawyer.

Edited September 20, 2022 by SteveInBostonI130

[Marthaeu 39]

1 hour ago, Salvador&Julissa said:

He was allowed to stay til the end of June. I'm sure if he leaves now there will be no issues, but I don't want him to go. I could travel back and forth while we wait I guess.

If he leaves the US now and within a year he will trigger a three-year ban.  It is better to adjust status.  You must have solid evidence that it is a bona fide marriage since it is a very short relationship

[Marthaeu 39]

5 hours ago, Salvador&Julissa said:

Isn't IR 1 for a spouse of a US Citizen? Now I am confused. I am sure attorney said IR 1

IR1 for marriages of at least 2 years and CR1 for marriages of less than two years

[SteveInBostonI130 3,328]

5 hours ago, Marthaeu said:

If he leaves the US now and within a year he will trigger a three-year ban.  It is better to adjust status.  You must have solid evidence that it is a bona fide marriage since it is a very short relationship

 

This is incorrect.  The ban starts at 6 months overstay, not 3 months.  Specifically, 180 days of accrued unlawful presence.

 

[little immigrant 800]

19 hours ago, Salvador&Julissa said:

So what category is he if I filed I 130 and he is in USA?

My husband overstayed and he has IR5 on his green card  (we filed I-485)

Edited September 21, 2022 by little immigrant