Filing an I-485 While a BIA Appeal Is Pending: Key Facts

If someone you love is in removal proceedings and has a BIA appeal still open, you may wonder whether a green card application can move forward too. Where your case stands determines which office has authority over it.

The real issue isn’t only whether the form can be mailed.

Short Answer: Who Decides an I-485 During a BIA Appeal?

Whichever office has authority decides it. In a removal case, that can be the immigration court rather than USCIS.

Form I-485 is the application for adjustment of status. It is submitted on Form I-485, Application for Permanent Residence, and it must come with the proper fee, as 8 C.F.R. § 245.2 explains. Adjustment of status is a request to become a lawful permanent resident.

A BIA appeal asks the Board of Immigration Appeals to review an immigration judge’s decision. Decisions of immigration judges can be appealed to the Board, under Board appeal rules.

Many people assume any USCIS office can take a green card form, because that’s where these forms usually go. In a removal case, that assumption needs a closer look. Getting the forum right at the start keeps the application from landing in the wrong place.

Why a Pending BIA Appeal Changes Where the I-485 Goes

USCIS has authority over an adjustment application unless the immigration judge has it instead. 8 C.F.R. § 245.2 sets that rule, so an open removal case can shift the authority.

In a removal proceeding, a person can ask the immigration judge for adjustment of status, under 8 C.F.R. § 1240.11. That request must be made during the hearing. The applicant also carries the burden of showing eligibility and that relief should be granted as a matter of discretion.

The ICE adjustment of status guide describes the same split. It says the request is made in immigration court during removal proceedings, and some documents may also go to USCIS.

A common mistake is treating the case as a routine USCIS filing. Sending the form to the wrong office can cause delay and create a second problem to fix.

The appeal also keeps the removal case open. Except when certified to the Board, an immigration judge’s decision becomes final when an appeal is waived, or when the time to appeal runs out with no appeal, under 8 C.F.R. § 1003.39.

Concurrent Filing of an I-130 and I-485 During an Appeal

Under 8 C.F.R. § 245.2, if approval of a visa petition filed under section 201(b)(2)(A)(i), section 203(a) or section 203(b)(1), (2) or (3) of the Act would make a visa immediately available at the time of filing, the adjustment application is considered properly filed whether it is submitted with the petition or after it, provided it meets the filing requirements of parts 103 and 245.

See 8 C.F.R. § 245.2. A separate route applies when a visa number has already become immediately available on an underlying Form I-140 visa petition. The applicant files the adjustment application, together with the proper filing fee and a copy of the Form I-797 receipt notice for that I-140, at the same Service office where the I-140 was filed. If the Immigration Court or the Board of Immigration Appeals has jurisdiction, the applicant files there instead, with proof of payment of the filing fee and a copy of the I-797.

Under 8 C.F.R. § 245.1, an applicant is ineligible to adjust status unless an immigrant visa is immediately available at the time the application is filed, and for a preference applicant the current Department of State Visa Bulletin is consulted to determine whether a visa is immediately available.

Unlawful status matters too. Under the same statute, an applicant who is in unlawful status on the filing date can be barred from adjusting, subject to the statute’s exceptions.

Review the petition and the adjustment application together. Don’t assume they move on the same timeline.

What Can Happen to the I-485 After the BIA Decides the Appeal

After the Board decides, the case can end several ways. Each result changes where the adjustment request is heard.

The Board can dismiss the appeal, or it can send the case back to the immigration judge. Under 8 C.F.R. § 1003.1, for most appeals of decisions issued on or after March 9, 2026, the Board must summarily dismiss the appeal unless a majority of the permanent Board members vote en banc to accept it for a decision on the merits.

If the case goes back on an adjustment application referred on a Notice of Certification (Form I-290C) or remanded, the adjustment question returns to immigration court. There, the request is made during the hearing, under 8 C.F.R. § 1240.11.

The Board can also administratively close a case. It weighs the totality of the circumstances, and a pending petition or application outside proceedings is not required for that closure, under 8 C.F.R. § 1003.1.

A decision doesn’t end the case on its own. Deadlines, the status of any removal order, and later motions all shape what comes next. For the broader process, see our adjustment of status overview.

Facts to Gather Before Deciding on a Filing Path

Gather your papers and dates before you choose a filing path. Start with these items:

• The Notice to Appear and the immigration judge’s decision
• The date the decision was given orally, or the date it was mailed or sent electronically
• The Notice of Appeal (Form EOIR-26) with its fee, or the fee waiver request (Form EOIR-26A)
• Any Form EOIR-27 or Form EOIR-60 entry of appearance
• USCIS receipt notices for the I-130 or I-485, including any Form I-797 notice

The appeal clock matters. Under 8 C.F.R. § 1003.38, the deadline counts from the oral decision or the notice of a written decision. If the last day falls on a weekend or legal holiday, it moves to the next business day.

A Notice of Appeal filed without the fee or a fee waiver request is not properly filed. The immigration judge’s decision then stands as final.

In absentia orders change the analysis. 8 C.F.R. § 1240.15 says no appeal lies from an in absentia removal order. Under 8 U.S.C. § 1229a, a person ordered removed in absentia after receiving oral notice of the consequences of missing a hearing can be barred from relief, including adjustment, for 10 years after the final order, unless exceptional circumstances apply.

Quick Answers

Talk Through Your Own Case With AG Immigration Law P.A.

If you’re helping a relative through removal while a BIA appeal waits, you may feel stuck between two offices and a tight clock. The filing choice carries real consequences.

AG Immigration Law P.A. focuses on removal defense, adjustment of status, family petitions, naturalization, removal of conditions on green cards, waivers, and BIA appeals. Adriana Gomez is the responsible attorney for this page. Consultations are paid.

When you’re ready, contact our team through the contact page, by phone, or on WhatsApp to book a paid consultation about your appeal.