pending I 485(employment base) - advise for file 2nd I 485 (family base)

[mihirrajul]

1- I have filed I485 (employment base) in Aug.2005 in Eb2 catagory- it is transferred from CSC to Nebraska Sr. Center and still pending there.
INS gives reason for that "PENDING NAME CHECK".
I have already approached Ambudsman ,Senator and emailed FBI regarding this last December. Still waiting for action from FBI. Senator and Ambudsman did reply me that they have contected FBI for my concern.

2- I have approved I 130 for me filed for me by my sister in 1995.
Visa number currently available under this catagory.
I asked my lawyer if I can file a 2nd set of I 485(Family based) for this I 130 file?
According to him, it may also come and stuck at the "NAME CHECK" leval and once again same situation .. So, it is better to wait for Employment based I 485 to be processed.

3- Last visa Bulletin suggest - NO VISA NUMBERS AVAILABLE in EB2 catagory for INDIA.
I donot see any chance to get Greencard (if FBI name check cleared) till 2009.

4- My daughter will be turning 21 in April 2009.
She is a UCR- california student and excellant academic record .
She plans for applying Dental School admission this May 2008.
All colleges require a permanent Resident card as a prerequisite to apply or she has to apply as an international student ( Student Visa) catagory.
If she apply as a International Student (STUDENT VISA) her Green Card processing can be in trouble. My lawyer advise never to opt for student visa.

5- This is very strange situation for all of us - paryticularly how to deal this problem? If some one can share his/her experience ,openion it can be a great help.....

6- Some one suggested to file " AGE OUT " application for her as she will be turning 21 next year- this might process her case indipendantly then and it will have no impact of my case processing on her file.

I donot know much about his AGE OUT option- what are advantages /disadvantages for this?

Also How to proceed with this ?

7- Should I file a 2nd set of I 485 inspite of negetive openion by may lawyer? or can I have option to combine these family based I 130 with my Pending I 485?

Please share your views.


Thanks. -----

 

[TheRealCanadian]

According to him, it may also come and stuck at the "NAME CHECK" leval and once again same situation .. So, it is better to wait for Employment based I 485 to be processed.

Ordinarily I'd agree with him, but your daughter's situation complicates things.

All colleges require a permanent Resident card as a prerequisite to apply or she has to apply as an international student ( Student Visa) catagory.

They're wrong. If she has a pending I-485 she does not need a GC or an F-1. Tell the school that she is legally present in the US, and if they do not admit her she will be contacting a civil rights attorney.

Your daughter may be protected under CPSA based on your sister's petition. When was the I-130 filed, and more importantly, on what date was it approved?

 

[mihirrajul]

thanks for instant reply-
My I 130 was filed and approved in May 1995 ( INDIA -F4 catagory).
You said that she can be protacted under CSPA on family petition.

Meaning that ,I have to file 2nd set of I 485 (FAMILY BASED -on APPROVED I 130) and then write to INS for AGE OUT option !!!

or

I can approach INS for AGE OUT right now for pending I 485 (employment base) .

Please also advise - should I initiate 2nd set of I 485 (family base) along with pending I 485 ? or wait .

Can we ask INS to utilise VISA NUMBER available on approved I 130 and process Pending I 485 ? (since there is no visa available this thime on employment base I 485)

 

[TheRealCanadian]

My I 130 was filed and approved in May 1995 ( INDIA -F4 catagory). You said that she can be protacted under CSPA on family petition.

Blech. I was hoping that the I-130 had taken a while to get approved; that'll cover you better under CPSA. How long did the I-140 take to be approved?

Meaning that ,I have to file 2nd set of I 485 (FAMILY BASED -on APPROVED I 130) and then write to INS for AGE OUT option !!!

If you've been dealing with your Senator's office, I would get back in touch with whoever you've been corresponding with, to let them know about the new Name Check policy, the age out, and your approved I-130, and what's the best way to get you approved based on the FB4. If it takes a new I-485 filing to do it, so be it, but you'll want the help of your Senator's office on finding out the best way to get it processed before she ages out.

Essentially, CPSA works by taking her date at I-485 approval and subtracting the number of days it took for the I-130 or I-140 to be approved, to get a date under 21.

 

[mihirrajul]

I 130 was approved in May 1995

Since I have already filed I 485 (E base) and every thing was moving very nice,I did not do any thing with approved I 130.
In March 2006 , they (NVC) send us AOS form (I 186) and DS 3032 form which handled accordingly ( paying $70 as ASO fees and nominated my sister as my agent in US) and after that Visa were available ,I guess some -where in end of 2006.

I 140 ( employment base) was approved in 2006 Jan.

I will call my senator`s office tomorrow as per your advise.
You mentioned ," CSPA substract days........." I didn`t follow it can you simplify it?

What I am getting here , with New FBI Policy my daughter`s case is pending since August 2005 (since my file get stuck up in FBI) , if she opt for AGE OUT option this time her case can be processed immediately .

There is no need to file another I 485 (F4B) .

At this time I have more concern for my daughter`s case since the information she get from her counceler regarding admission prequisite to have GC or F1. Mine will get processed any time and since I have my I 140 approved, Valid EAD ,getting Green Card will not change make much differance in my life (of course I will be free from renewal of EAD, I 131 and of all tension of waiting...) .
I want to epedite her case ,if it can be processed before May 2008 , after that time her admission will open.

What ever information you have provided as released some what pressure from me at this time and now I do see some hope for her case .

Thanks

 

[TheRealCanadian]

and after that Visa were available ,I guess some -where in end of 2006.

If the FB4 priority dates have been current for over a year, your daughter cannot use CPSA; one of the requirements is that the application be filed within a year of the dates being current.

What I am getting here , with New FBI Policy my daughter`s case is pending since August 2005 (since my file get stuck up in FBI) , if she opt for AGE OUT option this time her case can be processed immediately .

Yes, but here's the problem. Your daughter is a derivative beneficiary of your case. That means that she cannot be approved unless you have already been approved. So while you don't care about getting your GC, you should - because until you get a GC your daughter will be waiting.

There is no need to file another I 485 (F4B).

Here's where I think we differ. While I'm fairly certain one can substitute a different I-140 in an EB I-485, you may not be able to swap an I-130 for an I-140. And you need to proceed based on your I-130 from your sister - EB2 India is unavailable for the rest of the year, and your daughter is going to age out before the dates become current again. So you really should get into contact with your Senator's office again (and probably with your attorney again) with the following two questions:

a) How do I substitute my FB4 I-130 for my EB2 I-140? Do I need to file a new I-485?
b) My daughter is about to age out. How can USCIS expedite my (and her) I-485?

At this time I have more concern for my daughter`s case since the information she get from her counceler regarding admission prequisite to have GC or F1.

The counselor is wrong. But that's really a secondary issue - I'm more concerned with your daughter losing the ability to get a GC. Just sic the attorney on the counselor until he or she gives up.