My husband was granted Voluntary Departure and 120 days to leave the country. The Judge stated his record would be clean and he would be able to return to the US. The Judge told me to go ahead and file an I 130 relative petition now. Can I file the I 485 concurrently with the I 130 while my husband is still in the country, or do I have to wait until he returns to his country and file a K-3 visa? If we are approved can voluntary departure be canceled?
No. He cannot "adjust status" if he is outside the United States but must seek an immigrant visa. You may file the I-130 for him while still here. He will then either be issued an immigrant visa or a K-3. Only if he enters on a K-3 will he need to adjust once here. However he needs to be here to adjust,
Your husband continues to be in removal proceedings until he leaves the U.S. As such, he is ineligible for adjustment of status and you cannot file an I-485. He agreed to voluntary departure which means he must leave and consular process in order to return. if you are going to pursue a K-3 visa then there are other documents aside from the I-130 that must be filed as well.
Keep in mind it is not the job of an Immigration Judge to advise you how to legalize your husband. Complying with a voluntary departure order does not mean that your husband will be able to return to the U.S. It means that he will not be leaving under and order of deportation. Theoretically he can return to the U.S. However, depending on why your husband was placed in removal proceedings and how long he has been unlawfully in the U.S., his departure may cause other serious issues which can prevent his return.
You are really treading in dangerous waters here so be careful. if you have not already retained qualified immigration counsel you should seriously consider doing so.
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Since the Immigration Judge's order is final, you should file a Motion to Reopen the case with the I-485. I don't understand why, if you were married, the Judge did not postpone your husband's hearing date to allow you to sponsor him.
(213) 394-4554 x0 Mr. Shusterman is a former INS Trial Attorney (1976-82) with over 35 years of immigration experience. His response to your question is general in nature, as not all the facts are known to him. You should retain an attorney experienced in immigration law to review all the facts in your case in order to receive advice specific to your case. Mr. Shusterman's statement above does not create an attorney/client relationship.
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The facts and circumstances of your case must be analyzed correctly before an accurate response can be made. If your husband has accepted VD, he cannot adjust status in the US and will be subject to removal(among other penalties) if he does not depart before the VD expires.If the VD period has not yet expired, you can file a motion to reopen as Mr. Shusterman has pointed out. In conjunction with the Motion to Reopen and if he wishes to adjust his status in the US, a motion to withdraw VD must also be filed with the immigration judge. The Supreme Court case of Dada v. Mukasey(128 S.Ct. 2307(2008) should also be reviewed.