i485 aos question bout derivatives

[enochy]

Heres the deal, i would really appreciate it if anyone could give me their input:

My aunt sponsored my dad (F4) and our lawyer filed all the papers 485 485a 765 etc.
I'm 21, turning 22 soon, and me and my brother, we are covered by the CSPA and our family, 245i

question is: If my dad DOES NOT do his biometrics and DOES NOT goto the interview, but me and my brother go through with it, IS IT POSSIBLE FOR THE DERIVATIVES(MYSELF AND MY BROTHER) TO ADJUST STATUS? My father has been unemployed for awhile, and i dont know if he'll be sane long enough for everything before he abandons the family.

answer my lawyer gave: It depends…Usually, if primary beneficiary gets denied…derivative beneficiary gets denied as well….

here is my personal timeline:
08/06/2010 - Mailed to Chicago office Express Mail (i485, i485a, i864, i765, i131 etc.)
08/09/2010 - Received by Chicago USCIS Chicago Express.
08/18/2010 - Checks cashed
08/21/2010 - NOA's received in the mail
08/30/2010 - Biometrics appointment letter received (for 9/22)
9/01/2010 - WALKIN BIOMETRICS (Just Me though)

 

[namecheckvictim]

I dont care what your attorney says, you are a Derivative, meaning he doesn't goes to the interview, say goodbye to the whole thing.

 

[citi786]

Heres the deal, i would really appreciate it if anyone could give me their input:

My aunt sponsored my dad (F4) and our lawyer filed all the papers 485 485a 765 etc.
I'm 21, turning 22 soon, and me and my brother, we are covered by the CSPA and our family, 245i

question is: If my dad DOES NOT do his biometrics and DOES NOT goto the interview, but me and my brother go through with it, IS IT POSSIBLE FOR THE DERIVATIVES(MYSELF AND MY BROTHER) TO ADJUST STATUS? My father has been unemployed for awhile, and i dont know if he'll be sane long enough for everything before he abandons the family.

answer my lawyer gave: It depends…Usually, if primary beneficiary gets denied…derivative beneficiary gets denied as well….

here is my personal timeline:
08/06/2010 - Mailed to Chicago office Express Mail (i485, i485a, i864, i765, i131 etc.)
08/09/2010 - Received by Chicago USCIS Chicago Express.
08/18/2010 - Checks cashed
08/21/2010 - NOA's received in the mail
08/30/2010 - Biometrics appointment letter received (for 9/22)
9/01/2010 - WALKIN BIOMETRICS (Just Me though)

You MUST convince your dad to move forward with the petition or else derivative beneficiaries will NOT benefit. Do whatever it takes (legally) to get him to do the biometrics. In some cases (rare) there was no interview and GC's showed up in the mail.
Good Luck!

 

[Jackolantern]

answer my lawyer gave: It depends…Usually, if primary beneficiary gets denied…derivative beneficiary gets denied as well….

It's not "usually", it's ALWAYS! Primary gets denied, all derivatives WILL get denied.

Why are you concerned that he won't attend the fingerprint and interview appointments? Doesn't he want a green card for himself? Is he planning to leave the US?

 

[enochy]

he wants to abandon the family asap and live on his own. i guess the financial burden of supporting us is too much. single parenting is not easy.

im trying to kiss his *** and convince him to be with us til the interview but i dont know how successful i'll be. regardless i'll be enlisting in the us marines asap if i happen to receive my green card so i'll never see this man again unless need be.

he could careless about his green card. consider him a "rough neck" persay.


thank you, now i know that if he doesnt do this...my life is entirely over. the latter being returning to my country for mandatory military service receiving a dollar a day and utterly struggling with the language i never knew. ugh fml.

 

[praxx]

Enochy I think I have some good news for you. Or a good "opinion" if you go by my sig lol. 245i grandfathering works like this: the petition has to be correctly filed at the time it is filed and that's it! What this means is that if the original petition was CORRECTLY FILED and was not a frivolous or fraudulent sponsorship AT THE TIME then it doesn't matter if your dad applies right now as far as 245i protection is concerned.

Let me clarify, you have 245i protection for life! You are grandfathered for life! In other words you will have no bars to entry. Also, you are currently(thanks to 245i) able to adjust status in the US to anything--F1 or H1 depending on what you can get. Here's another option...go talk to your marine recruitor and see if they will let you join in return for "expedited immigration benefits" in case your father bails out. I have no clue if it would work but I did read rumors that joining the military has fixed the problems of a lot of people...so you need to check up on that avenue at least.

Your life is not over, that 245i grandfathering will help you a little or help you a lot for the rest of your life. It's an incredible advantage and you should try to get an employer to sponsor you as a backup plan. And one last suggestion...try to work something out with your dad in which you promise to pay him a ton of money to help him out. Entice him into applying somehow. Tell him that you want to go to the marines and you want to donate 80% of your salary to a business like a fast food franchise that he will run lol. It's worth a try, tell him you want him to manage your investment as a family partner and own 50-50. Maybe that idea will appeal to him?

A question for you now. If I recall correctly your aunt filed an I130 in April 2001 but your priority date is in May 2001. Did CIS demand any proof of mailing an app when you sent in the i485a document...how did you deal with that?

 

[enochy]

thats fortunate to hear. i really needed good news. thank you. i'll talk to a recruiter after labor day.

well, for 485a proof of presence, i gave my lawyer copies of our lease agreements, bank statement, etc. and a report card from school from 99 or 98, cant remember, i hope they accept it, as it wasn't much, it was almost a decade ago...not too many documents...

 

[TheRealCanadian]

245i grandfathering works like this: the petition has to be correctly filed at the time it is filed and that's it! What this means is that if the original petition was CORRECTLY FILED and was not a frivolous or fraudulent sponsorship AT THE TIME then it doesn't matter if your dad applies right now as far as 245i protection is concerned.

That's true, BUT - all it means is that he can claim relief under 245i if he is otherwise eligible to adjust status to permanent resident. Emphasis on "otherwise eligible" - there needs to be some eligibility, either as a derivative beneficiary or having an approved I-130/I-140/I-360 with a current priority date.

Let me clarify, you have 245i protection for life! You are grandfathered for life! In other words you will have no bars to entry.

This is nonsense and incredibly dangerous. If he's subject to the 3/10-year bars 245i does not waive them. It merely allows him to adjust status in the US without leaving for a consular interview and triggering them.

Also, you are currently(thanks to 245i) able to adjust status in the US to anything--F1 or H1 depending on what you can get.

Even more nonsense. 245i relief does NOT allow one to change non-immigrant status if out of status.

 

[Concerned4us]

You have an attorney. You should be getting your advice through him as he knows your entire case and has professional resources not available to forum members. If you are not comfortable with your attorney, find a new one; you are paying for representation, and you need to trust that adviser.

 

[enochy]

My attorney is out of the country til labor day.

I take all the information as a grain of salt, I appreciate everyone's concern and input. I sincerely do.

 

[praxx]

thats fortunate to hear. i really needed good news. thank you. i'll talk to a recruiter after labor day.

well, for 485a proof of presence, i gave my lawyer copies of our lease agreements, bank statement, etc. and a report card from school from 99 or 98, cant remember, i hope they accept it, as it wasn't much, it was almost a decade ago...not too many documents...

Yes but your priority date is May 2nd right? That's after the April 30th cutoff date for 245i. So in effect what you did was you mailed the i130 petition in April 2001(hence it was postmarked XX April 2001) but CIS recieved your application on May 02 2001 and hence your priority date is in May even though you mailed it to them in April.

Well my question was, did you have to prove to CIS that despite having a priority date *after* April 30th 2001 you mailed the packet to them postmarked in May? Did your attorney have to come up with any proof of mailing prior to the deadline? I'm just curious because my PD is also in May 2001 and my i130 was also mailed in April 2001.

 

[praxx]

That's true, BUT - all it means is that he can claim relief under 245i if he is otherwise eligible to adjust status to permanent resident. Emphasis on "otherwise eligible" - there needs to be some eligibility, either as a derivative beneficiary or having an approved I-130/I-140/I-360 with a current priority date.

Yes I am aware of that. An I-140 might work if he has certain job skills. For all you know the military might be able to file an I-140 for OP if qualifications are met and the need is there...OP is going to be looking into that. Also, I don't think OP's father's sibling petition will ever expire at all will it? That means even 2 year from today his father could have a change of heart and just go through with the paperwork...but regardless my point was that OP's qualifying for 245i protection is worth a lot. Maybe not worth as much as I thought but still worth something especially if OP moves fast to secure a petition through his father by derivation or the military or any other employer.

This is nonsense and incredibly dangerous. If he's subject to the 3/10-year bars 245i does not waive them. It merely allows him to adjust status in the US without leaving for a consular interview and triggering them.

I'm going to look into this more carefully. I was under the impression that 245i nullified the problems caused by uninspected entry which arent relevent to OP but I thought that the "eternal grandfathering" clause would surely help someone who just decided to randomly stroll out of the country. I guess not. Will be scouring all info I can find on 245i now.

Even more nonsense. 245i relief does NOT allow one to change non-immigrant status if out of status.

Ok I was told by someone that you could change to an H1...I didn't verify it but yeah I guess the only types of status you can change to then are IMMIGRANT ones as opposed to non-immigrant ones.

 

[enochy]

Yes but your priority date is May 2nd right? That's after the April 30th cutoff date for 245i. So in effect what you did was you mailed the i130 petition in April 2001(hence it was postmarked XX April 2001) but CIS recieved your application on May 02 2001 and hence your priority date is in May even though you mailed it to them in April.

Well my question was, did you have to prove to CIS that despite having a priority date *after* April 30th 2001 you mailed the packet to them postmarked in May? Did your attorney have to come up with any proof of mailing prior to the deadline? I'm just curious because my PD is also in May 2001 and my i130 was also mailed in April 2001.

My I-130(received last year in October) approval letter stated my father(beneficiary) was 245i eligible since it was postmarked on or before April 30th, 2001, i didnt have to prove anything. Trust me, before I received this letter, I was frantically looking for proof, our old lawyer did a FOIA and found out it was postmarked on April 30th, 2001, so FOIA might be the best option if you want assurance.


Also, to my knowledge, if the beneficiary does not file for AOS within one year of PD of the visa, it becomes null.

 

[praxx]

My I-130(received last year in October) approval letter stated my father(beneficiary) was 245i eligible since it was postmarked on or before April 30th, 2001, i didnt have to prove anything. Trust me, before I received this letter, I was frantically looking for proof, our old lawyer did a FOIA and found out it was postmarked on April 30th, 2001, so FOIA might be the best option if you want assurance.


Also, to my knowledge, if the beneficiary does not file for AOS within one year of PD of the visa, it becomes null.

My letter from October 2009 did not mention 245i however...this might be because my sibling filed with my consulate(rather than USCIS) so since 245i is only something that relates to AOS they wouldn't tell me I was 245i eligible since the state department assumed I was actually outside the US lol.

Yeah that makes proper sense now actually...my i130 was filed with NVC rather than the domestic USCIS. Then last month, August 2010, I got yet another letter from the state department telling me my PD was current and asking me to choose between consular processing or adjustment of status. They didn't mention 245i eligibility specifically in last month's letter but did include a pamphlet describing 245i benefits. I'd better fill that paperwork out next week and switch myself from consular processing to 485 AOS. Their automated system probably "overlooked" informing me of my 245i eligibility due to my petition going through the consulate system where it's close to useless if I understand.

 

[praxx]

This is nonsense and incredibly dangerous. If he's subject to the 3/10-year bars 245i does not waive them. It merely allows him to adjust status in the US without leaving for a consular interview and triggering them.

Just found some more info about the 10 year bar triggered by unlawful status. Yes, it is indeed quite possibly very dangerous to leave the US but oth it all depends on "unlawful presence" I guess.

http://shusterman.com/245ifrequentlyaskedquestions.html

Q8. If I qualify for the benefits of §245(i), leave the U.S. and return at a later time, will I still be entitled to adjust status in the U.S. in the future?

A. Yes. However, if you have been "unlawfully present" (a legal term of art - be sure to consult with an experienced immigration attorney) in the U.S. for 180 days or more, you may be subject to either a three or a ten-year bar to returning to the U.S. If this applies to you, DO NOT TRAVEL OUTSIDE THE U.S. UNTIL YOU BECOME A PERMANENT RESIDENT.

Q9. If I qualify for benefits under §245(i), when will my eligibility for being able to adjust status in the U.S. expire?

A. Never. Once you qualify for benefits under §245(i), your eligibility never expires. Of course, you must still qualify (through a relative, a job or the green card lottery) when you apply for adjustment of status. And you must be admissible to the U.S. If you are a criminal, have committed immigration fraud, etc., you may be inadmissible.

 

[citi786]

Your father who is the principal beneficiary of an approved I-130 can file whenever he decides to file, THERE IS NO EXPIRATION!
God forbid, if something happens to him, the petition WILL BE DEAD!
You leave the country and you will be BARRED FOR 10 YEARS!
YOU MUST & I REPEAT MUST CONVINCE YOUR FATHER SOMEHOW TO ACT SOON. HE MUST BE A PART OF YOUR FILING AND PART OF THE FP & INTERVIEW PROCESS!
You cannot adjust to another category using your 245i petition as YOUR I-485 IS NOT APPROVED YET!
Check your I-130 again! I-130 DOES INDICATE protection of 245i, (I have one and seen one). I am little worried about your PD, double check it!
I-130 are filed with USCIS and NOT NVC!
Ask your attorney to get his HEAD OUT OF HIS BEHIND and start taking things seriously!

My few cents............................

 

[praxx]

Enochy I don't remember if you are from NY or not but if you are then check into this as well: http://www.nbcnewyork.com/news/local-beat/Paterson-Creates-Immigration-Pardon-Panel-92686154.html

I know it's a pardon panel but it's still HELP. Someone in the state govt might be able to direct you to some benefit unique to your state.

 

[Jackolantern]

Your father who is the principal beneficiary of an approved I-130 can file whenever he decides to file, THERE IS NO EXPIRATION!

However, the CSPA protection will expire one year after the visa number became available.

You cannot adjust to another category using your 245i petition as YOUR I-485 IS NOT APPROVED YET!

245i grandfathering allows adjustment of status based on another I-130 petition in the same or different category, or through an I-140.

 

[praxx]

I think Enochy should start looking for an employer sponsor just as a backup plan. And simultaneously try to entice and encourage his father to go ahead with the AOS.