The state dept. approved my no objection waiver recommendation. Can I file my spouse-based I-130/I-485 package simultaneously w/I-612 waiver application? Or do I have to file the waiver application 612 with USCIS before filing for the green card?
Yes you can.
Please click the link at the very bottom for additional information.
Carl Shusterman, Esq.
Former INS Trial Attorney (1976-82)
Board Certified Immigration Attorney (1986 - Present)
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I’m assuming you received the letter from the State Department indicating that it has recommended that the USCIS grant a waiver in your case. This is not the grant of a waiver. Only the USCIS can grant a waiver. If you filed a no objection waiver, the USCIS Vermont Service Center will issue a receipt notice shortly after you receive the favorable recommendation. Several weeks after that, the Vermont Service Center will issue the approval notice in the case. This happens automatically and there is no need to file anything.
Under the statute, you cannot apply for the green card (I-130/1-485) until you have received the waiver grant. See INA § 212(e). That said, assuming you filed a no objection waiver, there is some authority in the USCIS Adjudicators Field Manual (AFM) indicating that you can file a no objection waiver application concurrent with an adjustment of status application. You can find that here: http://www.uscis.gov/portal/site/uscis/menuitem...
The filing of this adjustment of status application concurrently with a no objection waiver application is permissible. See USCIS Adjudicators Field Manual, Chapter 45.5 (a), Note 2, which states, in pertinent part (emphasis added): “A ‘no objection’ case is the only situation where the alien is allowed to file an adjustment application concurrently with a waiver request.”
Note that this only applies to no objection waivers. If you have a favorable recommendation from the State Department, there is also a USCIS Policy Memo called the Virtue memo. It permits the filing and adjudication of an I-485 after the State Department favorable recommendation has been received. I do not recommend this course of action because it may confuse the USCIS and cause delay in your case. These days adjustment of status applications are sailing through the USCIS in about 4-6 months.
You may want to consult with a lawyer that has specific experience in J-1 matters for more guidance on this.
Hake & Schmitt
Attorneys at Law
P.O. Box 540 (419 Main St.), New Windsor, Maryland 21776
Required Disclaimer: This information is generalized and should not be relied upon as legal advice; and this communication does not create an attorney-client relationship.
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