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How does a pending I-529 affect the filing of an I-485?

My husband is about to file an I-485 based on EB-5. I am supposed to file with him. However, I am in the pending process of an I-539 and a USCIS request for evidence. I wrote a withdrawal letter to USCIS and I am waiting for their decision. The problem is that I canceled my status last month (out of status), and now, everything is in pending process. Am still in authorized stay according to i-485 edibility? Can I file an i-485 before my I-539 has a final decision?

Answers

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    Answered on

    By implication, the last action usually takes precedence over previous action. In essence, your withdrawal letter will nullify the pending I-539 request. Thus, practically you will end up without any authority to stay in the U.S. Filing an I-485 may not be helpful because the withdrawal of the I-539 means you are not in legal status and therefore cannot adjust while in the U.S. Unless you can successfully comply with the I-539, provide the USCIS with the requested evidence and further direct the USCIS to set aside your withdrawal letter, you are not likely to be able to adjust in the U.S. Also be aware that unless you maintain lawful status in the U.S. any I-485 filed on your behalf will be denied and you can be subjected to disbarment from re-entering the U.S. for a substantial amount of time depending on the length of your overstay. For instance, if you overstay for more than six months the disbarment is three years and if the overstay period is over a year, the disbarment is 10 years. Advisably, talk to an EB-5 immigration attorney on the implications of your contemplated decisions.

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    Michael E Piston

    Answered on

    If your prior status expired, and you no longer have an application for extension of stay pending, then it appears that you are no longer maintaining a lawful status in the United States and are no longer eligible to adjust status in the United States. This means that an I-485 filed upon your behalf should not be approved. You also appear to be unlawfully present in the U.S. Depending on various factors you appear to have become unlawfully present when your form I-94 expired, or when you withdrew your I-539. In any event, if you are unlawfully present in the U.S. for more than 180 days, then depart the U.S., you will be barred from returning to the U.S. for three years. If you are unlawfully present for more than a year, you will be barred from returning to the U.S. for 10 years. You may however be eligible for a waiver if you can establish that your husband (or your U.S. citizen or permanent resident parent(s), if any, would suffer extreme hardship if you are not allowed to return to the U.S. If you are not subject to the three or 10 year bars (or if you get a waiver) then you may be permitted to immigrate to the U.S. after your husband becomes a permanent resident, but to do so you would have to apply for an immigrant visa at a consulate office.

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    Answered on

    You may file your I-485 while the I-539 is pending, but USCIS will adjudicate the I-539 first. If they approve it, then there is no problem. If they deny it, you will continue to be in a period of authorized stay (i.e., not accruing unlawful presence) due to your timely-filed I-485, but you will not be eligible for adjustment of status because you will not be in any valid non-immigrant status. If that happens, you likely will have to complete the immigrant visa process abroad at the U.S. embassy or consulate in your home country.

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    Answered on

    On the basis of an I-526 petition being approved you can apply for conditional permanent residency. If you are in legal non- immigrant status, such as B-2 visitor status, only then you can file an I-485 application in the U.S. This application will lead to the granting of conditional permanent residency. If you are not in legal status you cannot file an application for conditional permanent residency status.

  • Avatar
    Answered on

    In reference to your question, in order to file an I-485 you must have maintained your status. If you file a timely request for an extension of status (on Form I-539, for example), you are considered to still be in an authorized period of stay while the request is pending, so you could file an I-485 while the request is pending. However, since you sent a withdrawal request, USCIS could take the position that your status was terminated as of the date of the withdrawal. In that case, you would need to leave the U.S. and consular process.

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    Answered on

    To use the I-485 to adjust status, you must be in lawful U.S. status first. You are adjusting from U.S. non-immigrant status to that of a permanent resident. If you are not in legal status, you may not be able to adjust, and may have to obtain your conditional permanent residency through a U.S. consulate.

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    Answered on

    Do not withdraw the I-539 extension application. Currently, if you have a receipt notice for that, you could quickly file the I-485 as you are in valid status as pending extension application adjudication. If you withdraw, then you will be out of status from the time that you sent in the withdrawal letter of I-539 and you cannot get your I-485 filed as you are out of status. Your immigration attorney who filed the I-526 for you should be advising you of this.

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