Also how do I know if I need to file I-485 with I-130? My husband stayed illegally in the us for 12 years and left voluntarily about a year ago. Now we have a child together and would like to return to the states.
All family based cases require that an I-130 Petition be filed. Since your husband is NOT presently in the US he is not eligible for adjustment of status and thus, no I-485 would be filed. Rather he would consular process and since he accrued more than one year of unlawful presence in the US would need to alos file an I-601 to obtain a waiver.
Yes, the I-130 comes first. If your husband is not in the U.S., he cannot file an I-485.
The above is intended only as general information, and does not constitute legal advice. You must speak with an attorney to discuss your individual case.
I-130 is the first step. You have a lot of things going on here, you should seriously consider working with an attorney.
This is not legal advice and a client attorney relationship is not created. For a free consultation call (718)234-5588.
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The first step to sponsor your spouse is to file the I-130 family petition. Once a decision is made on the case, the case will be forwarded to the National Visa Center for consulatr processing. At the interview the officer will indicate to your spouse whether he is eligible to submit an I-601 waiver. Your spouse is not eligible to file an I-485 because he does not reside in the United States.
No I-485 from outside the U.S. -- only I-130 if you are an LPR or US citizen. However, your husband will certainly need at least one waiver approved at the consular processing stage (after the I-130 is approved and after his visa interview). There are many other things you need to investigate before you start. It is possible under current law that he is not even eligible to immigrant to the U.S. right now, for example if he triggered an inadmissibility bar that requires 10 years outside the U.S. before he is eligible to apply to immigrate as a permanent resident. Or he may have a police/criminal issue that is a problem. You really need complete and full immigration advice from an expert immigration attorney before proceeding.