When Can an I-130 Be Filed With USCIS 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 used by a U.S. citizen or lawful permanent resident (LPR) to start the U.S. immigration process—that is, to "petition" for a family member to get a green card.

In most cases, the immigrant must wait until USCIS approves the U.S petitioner's Form I-130 submission to proceed with the green card application. Conveniently, however, in some situations, when the immigrant is already living in the United States, Form I-130 can be filed at the same time as an application for a green card, or "concurrently." This article will describe:

• who can submit the I-130 concurrently with the I-485 and remainder of the adjustment of status application, and
• the advantages and disadvantages of doing so.

Keep in mind that not every family member qualifies for a green card: 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.)

Why Is Form I-130 Normally Submitted Before the Rest of the Green Card Application?

Before someone's green card application can go further, the U.S. petitioner must provide enough evidence to convince U.S. immigration authorities of two things (according to 8 C.F.R. § 1245.2(a)(2)(B)):

1. that the petitioner really is a U.S. citizen or permanent resident, and
2. that the beneficiary (the person who wants a green card) is actually related to the petitioner.

Form I-130 is designed to do just that. If filled out and documented property, it makes clear that the beneficiary qualifies for an immigrant visa and green card based on a close family relationship with the petitioner.

In many cases, waiting for USCIS to acknowledge the immigrant's basic eligibility and relationship to the U.S. petitioner (which can take many months; delays are inevitable) doesn't slow things down anyway. Unless a visa is immediately available in the relevant family category, or the immigrant is an "immediate relative" (spouse, parent, or unmarried, minor child of a U.S. citizen) annual limits on the number of available visas, plus high demand for them, frequently create a waiting list. We'll explain that further below.

What We Mean by a "Green Card Application"

There are two main procedural ways in which somebody can receive a green card:

1. through adjustment of status while already in the U.S. (in lawful status, unless an exception applies; see Who Can Apply for a Green Card Through Adjustment of Status), or
2. by applying for an immigrant visa at an overseas consulate and then entering the U.S. as a permanent resident.

Only in the first instance, however, is it possible to submit applications concurrently. Only USCIS accepts I-130s, so if the immigrant will be processing though a U.S. consulate, they'll have to wait for USCIS to okay this initial petition.

But again, some applicants who are already in the United States can prepare Form I-130 together with Form I-485 and the rest of the USCIS application for "adjustment of status" and submit them all to USCIS. After USCIS approves this adjustment of status packet (normally after an in-person interview), the green card applicant receives lawful permanent resident status, or a green card. This is sometimes referred to as "one-step adjustment."

For Whom Is One-Step Adjustment an Option?

One-step adjustment is an option when there is an immediately available immigrant "visa number" (an 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. The latter usually requires that the person entered with permission and is living in the U.S. in lawful status. There are exceptions, though, most notably for immediate relatives of U.S. citizens who entered lawfully (without fraudulent intention at that time to stay permanently) but whose permitted stay ran out. See Who Can Apply for a Green Card Through Adjustment of Status for details.

When immediate relatives of U.S. citizens can use one-step adjustment

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 or entered the U.S. with a visa, such as tourist (B-2) student (F-1) or specialty temporary worker (H-1B). In those cases, an immigrant visa number is immediately available because the spouse of a U.S. citizen is an immediate relative, for whom there is no limit on the number of green cards and thus no waiting period.

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 as well as 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 to USCIS 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.

When reference relatives with a current priority date can use-one step adjustment

It's less common, but in some cases family members in the preference categories, such as spouses and children of U.S. lawful permanent residents, can use the concurrent, one-step filing procedure. This is typically because they are in the U.S. lawfully when their priority date becomes current, or they see a "C" in the Visa Bulletin in their category, meaning it's current for everyone.

One issue to keep in mind, though, is that if there's a "C" in your category now, but a waiting list later develops such that your priority date is no longer current, you might not be eligible for a green card by the time USCIS is ready to act on your application. See an attorney for a full analysis.

Some employment-based applicants can also use one step adjustment

Though this article mainly discusses immigration categories that use an I-130 visa petition, it's worth adding that it's also a possibility in some employment-based cases, though we won't discuss the details here. See an attorney.

Notably, the 2022 EB-5 Reform and Integrity Act (RIA) has newly allowed EB-5 investors and their derivative family members to file Form I-485 at the same time as filing Form I-526E, Immigrant Petition by Regional Center Investor, or at any point prior to Form I-526 approval. This one-step filing is possible only when the applicant has a current priority date.

Disadvantages to Concurrent Filing.

The mere fact that one-step adjustment is available as an option does not mean that you should use it, or that USCIS will approve the petition or adjustment of status application.

For one thing, to actually receive a green card, the immigrant must, among other things, be eligible for adjustment of status and be admissible to the United States. 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 could land the immigrant in removal proceedings and waste a lot of application fees. 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.

Another issue might arise if convincing USCIS that the basic relationship is valid will be an issue. If, for example, you lack the key birth certificate and will have to prove a parent-child relationship based on affidavits from friends, you might want to make sure you can get the I-130 approved before going through all the effort and expense of completing the rest of the adjustment application. The same analysis applies if your marriage is a common-law one, or otherwise difficult to prove.

Getting Legal Help

To make sure of what your opportunities are when it comes to submitting a green card application, and strategizing the best approach, consult with an immigration attorney for a full evaluation. The attorney can also prepare the paperwork, monitor the case through the U.S. immigration bureaucracy, write convincing cover letters, and accompany you to a USCIS interview.