When an I-130 Can Be Filed at the Same Time as a Green Card Application
Form I-130 (Petition for Alien Relative), issued by U.S. Citizenship and Immigration Services (USCIS), is normally the first thing that a U.S. citizen or permanent resident must submit in order to start the immigration process—that is, "petition" for—a family member. The "petitioner" who submits Form I-130 has to provide enough evidence to convince the immigration authorities of two things:
that the petitioner is a U.S. citizen or permanent resident, and
that the beneficiary (the person who wants a green card) is related to the petitioner.
It also has to be clear that the beneficiary qualifies for an immigrant visa based on his or her family relationship with the petitioner. For example, siblings of U.S. citizens can qualify for immigrant visas, but siblings of permanent residents cannot. (See Green Cards for Your Family: Sponsorship Rules for more information on eligibility and other rules.)
In most cases, the immigrant waits until USCIS has approved the Form I-130 submission to proceed with the green card application.
Sometimes, however, Form I-130 can be filed at the same time as an application for a green card. Before we can explain how and why, we first have to discuss what a “green card application” is.
What a “Green Card Application” Is
When people talk about “green card applications,” they are usually referring to Form I-485, which is the USCIS application for “adjustment of status.” When USCIS approves Form I-485, the green card applicant receives lawful permanent resident status, or a green card. But there are actually two main ways in which somebody can receive a green card:
through adjustment of status while already in the U.S. (in lawful status, unless an exception applies); or
by applying for an immigrant visa at an overseas consulate and then entering the U.S. as a permanent resident.
When people submit Form I-130 together with Form I-485, this is usually referred to as “one-step adjustment,” or "concurrent filing." The phrase “one-step” refers to the fact that instead of submitting a petition and then waiting for the approval of that petition before submitting an application for adjustment of status or for an immigrant visa, both the petition and the adjustment application are sent in at the same time. Combining these steps is largely impossible in cases where the immigrant is living overseas.
When Is One-Step Adjustment an Option?
One-step adjustment is an option when there is an immediately available immigrant "visa number" (opening for someone to become a permanent resident) and the immigrant is both living in the U.S. and eligible to use adjustment of status as an application procedure, which usually requires that the person have entered and be living in the U.S. in lawful status. See Who Can Apply for a Green Card Through Adjustment of Status for more on this.
One common scenario in which one-step adjustment of status is an option is when a U.S. citizen is petitioning for a husband or wife, and that person is living in the U.S. with a visa, such as student or H-1B. In those cases, an immigrant visa number is immediately available because the spouse of a U.S. citizen is an immediate relative and for immediate relatives there is no limit on the number of geren cards and thus no waiting period to receive one.
The immigrating spouse can, in such a case, submit a Form I-485 at the same time that the U.S. citizen husband or wife submits Form I-130. On Form I-485, the immigrating spouse would check the box that says: "I am applying for an adjustment of status to permanent resident status because . . . An immigrant petition giving me an immediately available immigrant visa number has been approved.”
Other immediate relatives for whom there is no limit in the number of available green cards include parents and children (under 21 and unmarried) of U.S. citizens. Assuming that there is a valid relationship for immigration purposes and the parent or child is in the U.S. and “admissible,” those immediate relatives would also be able to submit Form I-485 at the same time as the petitioner submits Form I-130.
If you are filing Form I-360 as the victim of abuse by a U.S. citizen spouse or parent, you may also utilize one-step adjustment. Religious workers filing an I-360, however, must wait for the I-360 to be approved, and cannot file it together with an I-485.
Watch Out for Inadmissibility Problems
The mere fact that one-step adjustment is available as an option does not mean that USCIS will approve the petition or adjustment of status application. To actually receive a green card, the immigrating relative must, among other things, be eligible for adjustment of status and be admissible.
If the immigrating relative entered the U.S. unlawfully, or has committed criminal or immigration violations, neither of those are likely to be true—in which case applying for one-step adjustment may land the immigrant in removal proceedings. For more information, see Inadmissibility: When the U.S. Can Keep You Out, and Consequences of Unlawful Presence in the U.S.: Three- and Ten-Year Time Bars. Also consult with an immigration attorney for a full evaluation of your family's situation and possibilities.