I have noticed that your question has been pending for awhile and no one has tried to answer it. I don't want to leave you without an answer, but I will tell you that I need to do some research about if you file with USCIS or with the Immigration Judge (IJ). That is the only thing that I am unsure of. Give me a little time and I will find the answer as it is not readily apparent in any of my texts.
If you must file with the IJ, the process will be to file the I-130 with USCIS, have them adjudicate it, then file a motion to reopen your proceedings with the IJ showing the approved I-130 and when the IJ opens your case, then you file the I-485 and everything else with him (or her).
It is not that complicated, but it would run smoother with an attorney, especially the part about the motion to reopen.
So again, let me verify that for you and I will get back to you in a day or two as I am also somewhat busy these days with my own practice.
Sorry for the delay in getting back to you. I have been extremely busy with my own practice and taking care of some community service to underserved children that I do around this time every year. I have done some additional research on your case and I have some additional questions for you. How did your spouse enter the U.S.? Did she use a visa or did she enter illegally? If she used a visa, which type of visa was it?
It has everything to do with her options. An Entry Without Inspection (EWI) has very limited options and Withholding of Removal just means they will not deport her. This is precicely the reason you want to fix her status, because obviously Withholding of Removal doesn't give her the firm legal status that she would want.
But the good news is that since she entered on a tourist visa, she can adjust status without having to leave the U.S.
It seems to me you will have to file the I-130 with USCIS and then motion the Immigration Court to reopen proceedings in order to have the Immigration Judge adjudicate the I-485.
Hello. I am here. How may I help you?
You cannot file the I-485 yet. You just file the I-130 now and get that approved first. Once you do, then you file the motion to reopen with the immigration judge. If successful, then you file the I-485 with the Immigration Judge and you check mark box "a" because the I-130 would be approved by then.
As far as question 22 goes in the I-130, you write in the city name where you currently live.
You don't think they will know this anyway? The correct procedure is to file the I-130 without the I-485. They will just deny the I-485 saying that they do not have jurisdiction. They only have jurisdiction to adjudicate the I-130. The Immigration Judge has the jurisdiction to adjudicate the I-485. I hope you aren't afraid that they are going to try to deport her again! It doesn't work that way (unless she committed some kind of crime).
So file the I-130, yes put that she overstayed and yes, put that she was in immigration proceedings. She has already been absolved of that by being granted Withholding of Removal. When it is approved, file the motion to reopen with the court and the evidence that the I-130 has been approved. Then if it gets reopened, then you file the I-485 with the immigration judge.
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