Can I file the AOS with USCIS if it has already been filed with EOIR, while in removal proceeding?

Question

Entered US after inspection on M1, went out of status, got married to USC before receiving NTA, shortly after marriage was detained by CBP and later was released on bond, filed the I130 after being released, and later hired an attorney and they filed the I485 with the EOIR. The I130 and I485 was not filed concurrently. Had two petty theft misdemeanors, 1st one was differed prosecution and 2nd one was no contest. AOS when filed with EOIR has a long processing time and usually in this scenario the AOS is filed with USCIS and they put the case on admin closure till the proceeding is terminated. This option was not made aware to me by my attorney and now I’m stuck waiting for how ever long it’s going to be. It’s been 6 months on the AOS and year on the I130,I don’t have my EAD, no update on I130 or the AOS. Is there any way to get the AOS processed by USCIS or do I have to file again with them? Or is there any way for faster processing?

James L. Arrasmith · Answer

If you are in removal proceedings and your attorney has already filed the Adjustment of Status (AOS) with the Executive Office for Immigration Review (EOIR), it cannot be filed again with USCIS simultaneously. Typically, once in removal proceedings, jurisdiction over the AOS application transfers to EOIR. 
 
You might consider requesting that your removal proceedings be administratively closed, which could allow you to file the AOS with USCIS. However, this process requires a motion to the immigration judge, and the decision is at their discretion. This option could potentially speed up your case since USCIS may have shorter processing times for AOS applications. 
 
Given the complexity and the current delays, you might want to discuss with your attorney the possibility of requesting expedited processing or finding other ways to streamline your case. Another option could be to ensure all documentation and evidence are thoroughly prepared to avoid further delays when your case is heard. It's crucial to stay proactive and keep communication open with your attorney to explore all possible avenues for faster resolution.

Nicholas Pasquarello · Answer

This seems like a pretty complicated case where I would need a bit more detail to have earnest feedback.  Entry on M1 first and only entry?  Where and how detained by CBP?  Were you NTA'd at that time or before?  What box is checked on your NTA - Arriving Alien?  
 
What Mr. Arrasmith said regarding Admin Closure is incorrect.  The Court cannot Admin Close your case to process AOS through USCIS due to jurisdiction. If you're in Court, the Court has jurisdiction over your AOS.  If you're not in Court, USCIS has jurisdiction. Because you are in Court, the Court has jurisdiction over your case.  Therefore, what Mr. Arrasmith said about seeking Admin Closure to process your AOS with USCIS does not make sense and please disregard that.  
 
In any situation, your eligibility for AOS is based on the I-130, which is still pending.  You cannot have the AOS processed before the I-130 is approved.  While the Court has jurisdiction for AOS, the Court does NOT adjudicate I-130s; only USCIS does that.  So even if your AOS is processed by the Court, you will still most likely have to go to a USCIS office for an interview for the I-130. 
 
There is also a particular biometrics process that has to be done for AOS when filed in Court.  Make sure your attorney did this properly.  Maybe that's holding things up?  
 
Sorry this is more questions than answers, but as I said, this appears to be a pretty complex situation and much more detail would be needed to accurately advise on anything.  I'd definitely seek a second opinion from another attorney on your case. Make sure to have all your documents, that's how we figure out what's really going on.

Q: Can I file the AOS with USCIS if it has already been filed with EOIR, while in removal proceeding?