I-130 approved (I-797 received): Why do we have to file I-824 (and do we)?

Question

My wife (US citizen) submitted I-130 online in Dec for me (currently living and working in Canada). Today we received I-797 that the I130 petition is approved. YAY!

According to everything I had read before, the next step for me would be filing DS-260 at the embassy in Canada.

However, the received I-979 reads:

The above petition [I-130] has been approved. The petition indicated that the beneficiary is in the United States and wishes to apply for adjustment of status to that of a lawful permanent resident. He or she should submit a copy of this notice, along with a Form-485, Application to Register Permanent Residence or Adjust Status. [...]

If the beneficiary decides to apply for an immigrant visa outside the US based on this petition, you should file Form I-824, Application for Action on an Approved Application or Petition, to request that we send the petition to the U.S. Department of State National Visa Center (NVC)

The NVC processes all approved immigrant visa petitions that require consular action. It also determines which consular post is the appropriate consulate to complete visa processing. The NVX will then forward the approved petition to that consulate. The NVC will then contact the beneficiary concerning further immigrant visa processing steps.

However, this is not true. The I-130 petition clearly stated that I am living and working in Canada (along with my Canadian address etc.).

1. Is this normal? Did we file I-130 somehow wrong? Clearly if I would have been in the US we would have filed I130 together with I-485 to save time
2. According to https://www.boundless.com/immigration-resources/marriage-based-green-cards-explained/, DS260 is $445. However, I-824 is yet another $465! The above link never mentioned I-824 so I wonder why we need to file this.
3. I would like to take action as quickly as possible. What is the best way to proceed? Can I already start DS-260 to save time?

Answer 1

If your wife specified on the I-130 a consulate where you will do Consular Processing, and left the part about office where you will do Adjustment of Status blank, USCIS should send the approved petition to NVC after I-130 approval, and not hold onto it to wait for you to file Adjustment of Status. You should not have to file I-824 unless your wife had specified on the I-130 that you will do Adjustment of Status.

(If anything, sometimes the opposite happens -- people who indicated Adjustment of Status get I-130 approvals saying that it will be sent to NVC for Consular Processing, because USCIS assumes that people will not remain in status in categories that have a wait. That case isn't that big an issue, as they can still just file Adjustment of Status directly.)

I am not sure what you can do in your case. You might want to contact USCIS to verify that the notice reflects what they are actually doing, i.e. they are really not sending the petition to NVC, instead of it being a typo on the notice. If they are really not sending the petition to NVC, you might try to contact USCIS to see if they can send it to NVC without you filing I-824, since the I-130 did say Consular Processing and it's their mistake, not yours.

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Update: According to the July 8, 2022 email from the CIS Ombudsman (see here or here):

If you select only the consular processing option and USCIS does not send the approved Form I-130 to the NVC within two months of approval, this could be a USCIS error and you would not be expected to file a Form I-824. If you cannot resolve the issue with USCIS, you may submit a CIS Ombudsman case assistance request. If you do, please include copies of the original Form I- 130 submission and documentation of your correspondence or inquiries to USCIS where you tried to resolve the issue.