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EB derivative AOS pending, getting married to USC and filing afresh

Discussion in 'General I-485 and Related Issues' started by kcg, Jun 9, 2011.

  1. kcg

    kcg Registered Users (C)

    Case history so far:

    1. I-485 was filed in July 2007 (along with the rest of the family) as a derivative of parent's approved EB I-140 - AOS is still pending for all;
    2. Getting married to a US Citizen now, and the PD for the original EB application won't become current by then;
    3. Starting a new I-130 based application, immediately after the wedding date;
    4. Last name will change after marriage.

    A few questions of a general nature:

    a. Is a medical exam needed again, and is the biometrics fee to be submitted again?
    b. Does the original I-485 (EB-based) have to be explicitly "withdrawn", or does it implicitly get canceled upon receipt of the new one?
    c. Does a new EAD have to be applied for along with the new 485, or will the old one remain ok (particularly if the original 485 is withdrawn/canceled, and also because of the lastname change)?

    And some questions specific to the various forms:

    i. On I-130, in section C, Qn.14, state the authorised stay expiration date as the I-94 expiration date (in 2008), or something like "Pending AOS"?
    ii. On I-864, Q.21: a=1, b=1, c=1, but h should be 2 and not 3. How to achieve this?
    iii. On I-485, in Part 1, should "Current USCIS Status" be "Pending AOS"? And, what should "Expires on (mm/dd/yyyy)" then be?
    iv. Also on I-485, in Part 3A, what should be stated as 'final disposition' of the original EB AOS application?
    v. For I-765 (if a new one actually needs to be filed), is a filing fee required? (The note in the instructions, "If you filed Form I-485... as of July 30, 2007, no fee is required to also file a request for employment authorization on Form I-765", somehow doesn't make it clear that no fee is required if I-485 was filed AFTER 07/30/07).

    Also, any other points or potential complication etc to look out for - please do include in the replies!

    Thanks in advance for the help and advice!
    Last edited by a moderator: Jun 10, 2011
  2. kcg

    kcg Registered Users (C)

    Looking for answers...

    Gurus... answers to the any or all of the above queries would be much appreciated!

    Many thanks!
  3. Jackolantern

    Jackolantern Registered Users (C)

    In other situations you might have been able to do "interfiling" to transfer the old I-485 onto your marriage-based case, and avoid the whole pile of formalities and fees associated with the I-485.

    But because you are a derivative through your parent, once you get married the original I-485 will be null and void. So you will need a new I-485, with a new medical, new fingerprinting, new I-765* and everything else. There will not be a fee for the I-765 or I-131, because your new I-485 is after the Summer 2007 fee restructuring, which made the I-765 and I-131 free with the I-485 (of course they're not really free, just built into the enlarged I-485 fee).

    For your status, write "pending AOS" and leave expiration dates blank. But if you traveled outside the US and reentered with Advance Parole, you can write Parolee if you prefer (I won't get into the details now, but there are some peculiar benefits to parolee status due to nuances in the law).

    You can get the medical done ahead of time, you don't need to even be married to visit the doctor for it. You'll need to make the appointment for at least 2-3 weeks before getting married, if you want to get the sealed results soon enough for you to be able to send it with your I-130 and I-485 right after the wedding.

    Write 0 for 21(c) or leave it blank.

    *you can keep using the existing EAD to work until it expires or USCIS gives you notice of canceling it. Don't request a withdrawal of your old I-485. Let them figure it out and take their time to cancel it, as you don't want your old EAD cancelled before the new one is approved. And once you marry, don't travel with the old Advance Parole, as it would be disastrous if they cancel it when you're outside the US.
    Last edited by a moderator: Jun 18, 2011
  4. Jackolantern

    Jackolantern Registered Users (C)

    For your last name change, leave your name unchanged when filing these forms, in order to keep things simpler (it can be problematic to change your name on other documents without having the green card). Then when you are at the interview, ask for the green card to be printed with your new last name.
  5. kcg

    kcg Registered Users (C)

    Jackolantern, thanks a lot for your very detailed reply. This addresses all the questions for which we were looking for answers. It is very highly appreciated!

    Got the medical done yesterday, and are awaiting the results now. For the name change, however, even though yes, it definitely looks simpler to keep the name unchanged as you suggest (all documents would remain the same!), we *are* in fact planning to change the last name, and apply in the new name. Have got the marriage license form accordingly, and once we get the marriage certificate, planning to use that as the basis to apply for new passport, DL name change, SS, bank, lease etc etc etc!!! The reasoning being that although it's a lot of work, but it has to be done at some point anyway, so may as well do it sooner rather than later.

    Thanks once again for your very helpful reply.
  6. BigJoe5

    BigJoe5 Registered Users (C)

    Continue to use the same A# on the new I-485 etc...

    If USCIS assigns you a new A# withn the 2nd I-485 then eventually they would figure out that you had two and that would slow things down while they consolidated them.

    Your fingerprints will reveal the second A# but it could get overlooked until it reaches the interview, then NO approval on the spot...you'd have to wait for file consolidation, it is USCIS Policy.
  7. Jackolantern

    Jackolantern Registered Users (C)

    Yes, it has to be done at some point, but it could be more difficult without the green card, because some places (especially the increasingly picky DMV) will want to see an identifying immigration document with your new name. You'll probably have to wait until you have at least the EAD to change it on your driver's license/state ID and Social Security card. There might be just 1 or 2 months difference between your new EAD approval and green card approval.

    If you make one visit to the Social Security office to change your name before getting the green card, you'll have to visit the SS office again after green card approval to update them with your LPR status and get your SS card changed to remove the employment restriction. Delaying the name change until green card approval would mean just one visit to accomplish both the status update and name change.

    It's quite common for married female immigrants to delay their name change for months or even more than a year in order to have it coincide with the end of the green card or citizenship process and thereby reduce the overall hassles involved. Ultimately it's your choice; if you want to change your name now instead of waiting a few months go ahead. Just be aware that you could be facing a bit more work and hassle for yourself by changing it before the green card.
    Last edited by a moderator: Jun 22, 2011

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