{"id":6832,"date":"2026-11-12T03:27:04","date_gmt":"2026-11-12T03:27:04","guid":{"rendered":"https:\/\/abogadaadrianagomez.com\/resources\/adjustment-of-status\/can-i-file-i-485-while-bia-appeal-pending\/"},"modified":"2026-11-15T00:50:03","modified_gmt":"2026-11-15T00:50:03","slug":"can-i-file-i-485-while-bia-appeal-pending","status":"publish","type":"page","link":"https:\/\/abogadaadrianagomez.com\/resources\/adjustment-of-status\/can-i-file-i-485-while-bia-appeal-pending\/","title":{"rendered":"Miami I-485 While a BIA Appeal Is Pending: Key Facts"},"content":{"rendered":"\n
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Miami | Adjustment of Status and BIA Appeals<\/p>

Filing an I-485 While a BIA Appeal Is Pending: Key Facts<\/h1>

A pending appeal can change which office handles your green card application, so the details of your case matter from the start.<\/p>

Contact AG Immigration Law P.A<\/a><\/div><\/div>\n<\/div><\/div>\n\n\n

By Adriana Gomez \u00b7 Published November 11, 2026<\/p>\n\n

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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.<\/p>\n

The real issue isn’t only whether the form can be mailed.<\/p>\n

Short Answer: Who Decides an I-485 During a BIA Appeal?<\/h2>\n

Whichever office has authority decides it. In a removal case, that can be the immigration court rather than USCIS.<\/p>\n

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. \u00a7 245.2<\/a> explains. Adjustment of status is a request to become a lawful permanent resident.<\/p>\n

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<\/a>.<\/p>\n

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.<\/p>\n\n

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If a BIA appeal is holding up a green card case for someone you love, you don't have to sort out the filing path alone. Our team can talk it through with you. Talk it through with our team — we can walk you through how a situation like yours is usually handled and what your options are.<\/p>

Schedule a consultation<\/a><\/div><\/div>\n<\/div>\n\n
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Why a Pending BIA Appeal Changes Where the I-485 Goes<\/h2>\n

USCIS has authority over an adjustment application unless the immigration judge has it instead. 8 C.F.R. \u00a7 245.2<\/a> sets that rule, so an open removal case can shift the authority.<\/p>\n

In a removal proceeding, a person can ask the immigration judge for adjustment of status, under 8 C.F.R. \u00a7 1240.11<\/a>. 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.<\/p>\n

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

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.<\/p>\n

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. \u00a7 1003.39<\/a>.<\/p>\n

Concurrent Filing of an I-130 and I-485 During an Appeal<\/h2>\n

Under 8 C.F.R. \u00a7 245.2<\/a>, 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.<\/p>\n

See 8 C.F.R. \u00a7 245.2<\/a>. 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.<\/p>\n

Under 8 C.F.R. \u00a7 245.1<\/a>, 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.<\/p>\n

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.<\/p>\n

Review the petition and the adjustment application together. Don’t assume they move on the same timeline.<\/p>\n

What Can Happen to the I-485 After the BIA Decides the Appeal<\/h2>\n

After the Board decides, the case can end several ways. Each result changes where the adjustment request is heard.<\/p>\n

The Board can dismiss the appeal, or it can send the case back to the immigration judge. Under 8 C.F.R. \u00a7 1003.1<\/a>, 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.<\/p>\n

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. \u00a7 1240.11<\/a>.<\/p>\n

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. \u00a7 1003.1<\/a>.<\/p>\n

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<\/a>.<\/p>\n

Facts to Gather Before Deciding on a Filing Path<\/h2>\n

Gather your papers and dates before you choose a filing path. Start with these items:<\/p>\n