Mary entered US using someone else passport, then Mary applied for asylum and was granted "withholding of removal" by immigration Judge. Then a years later, Mary married Mike (permanent resident, not citizen) and Mike applied I130 for wife. Now I-130 priority day is current. USCIS sent out notice saying I-130 interview will be scheduled but the date not yet set up. Can Mary submit I-485 now to USCIS or wait after the interview to submit I-485? Does Mary have to go back to immigration court to re-open case and adjust status in immigration court?
USCIS does not have jurisdiction to hear this matter. A Motion to Reopen would need to be made to the Immigration Court upon which your spouse would need to be eligible to apply for residency. It is likely there will have to be a Fraud Waiver that needs to be submitted. Also, it is likely that the petitioning spouse would have to be a U.S. Citizen for adjustment to go forward.
Brian D. Lerner
Attorney at Law
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