Judges No Longer Wait for a Pending I-130 in Removal Cases

A U.S. citizen called episode 1080 of the Immigration Answer Show about her husband, a Guyanese national who entered on a B-1/B-2 in 2020, overstayed, was picked up by ICE, and got out on a $9,000 bond. She filed an I-130 about a week after his arrest; six months in, it is still pending, and he has a Notice to Appear but no scheduled hearing. Jim Hacking’s read is that the missing court date is the best fact in the case.

The old assumption was that an immigration judge would keep continuing a removal case while USCIS worked through a pending relative petition. Hacking told listeners that is no longer safe to count on.

There is a legal basis for that shift. A continuance to await a “collateral” matter like an I-130 requires good cause, and under Matter of L-A-B-R-, 27 I&N Dec. 405 (A.G. 2018) the judge weighs the likelihood the petition will be granted and whether it would change the outcome. Without an already-approved I-130 in hand, an immigration judge can decline to wait under 8 CFR § 1003.29 and move toward a removal order.

So the strategy is a race: get the I-130 approved before a hearing gets set. If the petition crosses one year pending without a decision, Hacking would sue to compel it: a mandamus action of the same kind used when a relative petition stalls behind agency delay. An approved I-130 is what makes adjustment under INA § 245 possible in the first place; here it would also have to clear the separate question of admissibility, given the criminal case that resolved earlier this year.

Hacking framed the same point as a general warning to anyone waiting on USCIS while in proceedings, whether a U visa, a VAWA petition, an I-751, or an I-130.

The Notice to Appear that lands at arrest starts the clock under INA § 239. For now, an unscheduled case buys time to get the I-130 adjudicated before the court forces the question. The people who lose that race are the ones who assumed the judge would wait.