A filed I-130 petition on its own grants no status and does not protect against deportation: it is only a mandatory first step toward family-based adjustment of status or consular processing. The immigration court has no authority to rule on an I-130 — only USCIS can do that, and its processing times are currently very long. That’s why some attorneys file I-130 together with I-485 to speed up approval of the petition.

Does I-130 provide status and protection

An I-130 petition is filed on behalf of a family member. If, for example, the applicant is married to a US citizen and is in removal proceedings, the question arises: does a filed I-130 protect against deportation, and does it grant a temporary status that can be shown to an ICE officer on the street? The answer, generally, is no. I-130 does not grant any legal status.

But an approved I-130 is a prerequisite for family-based adjustment of status or consular processing if the family member is outside the US. In other words, the first step in any scenario — whether adjustment of status inside the US or filing from abroad — is an approved I-130.

Why the court can’t wait for USCIS

The immigration court has no authority to rule on an I-130 petition — only USCIS does. The I-485, the green card application, can instead be decided either by the immigration court, if the applicant is in removal proceedings, or by USCIS, if there are no such proceedings.

For arriving aliens in removal proceedings, the rule is different: their I-485 must be decided by USCIS, and the court has no jurisdiction in that case. For most immigrants in removal proceedings, however, I-485 can be filed with the court as a defense against deportation only after USCIS has approved the I-130.

In the situation under discussion, the problem is that I-130 petitions filed on their own, without accompanying applications, take a very long time to process: the official processing time estimate for I-130 is 25 1/2 months, and in practice it can be even longer. At the same time, immigration judges have been instructed not to delay removal proceedings to allow time for I-130 to be processed. Previously, courts, when possible, would pause proceedings to give USCIS time to decide. Now, if you tell the judge that an I-130 has been filed, they will respond that this is not a defense against deportation available today, and will order removal before USCIS manages to review the petition.

Asylum as a way to buy time

Some people with a pending I-130 also have a legitimate asylum claim that could be approved. But in such a situation, the real interest isn’t in having the asylum claim decided — it’s in getting the I-130 approved, after which one can ask the court to terminate proceedings and file I-485 either with the court or directly as a defense against deportation. Until the I-130 is approved, this defense is unavailable. So asylum is treated only as a way to buy time, without misrepresenting any facts in the application.

A line of people outside a US immigration court building: visitors waiting at the entrance in the lobby under signs with courtroom numbers

Filing I-130 and I-485 together

Attorneys are increasingly using the strategy of filing I-130 together with I-485 at USCIS at the same time. Based on observations, in such cases a USCIS interview may take place after roughly 6 months. At the interview, USCIS will say it cannot decide the I-485 because the applicant is in removal proceedings, and will administratively close that application. But a decision on the I-130 may already be made. The result of this filing strategy, in some situations, is a much faster approval of the I-130.

After that, the order is as follows: with an approved I-130, the applicant asks the court to terminate proceedings. If the court terminates them, a copy of the termination decision is submitted to USCIS with a request to reopen the administratively closed adjustment of status application.