Experts help needed: Convert EB3 dependent to FB2A - how to /should we?

[aaifor]

Dear all,
Here are the facts.

I am primary and have received Green Card in 2007

• PD: June 2004 (Country India) - EB3
• Got married in 2006
• Spouse entered US in 2006 on H-4
• Filed for spouse (India) in July 2007
• I, primary got GC in July 2007
• Continue yearly AP renewal for spouse

EB3 PD for India Dec 2010 is 22JAN02
FB2A PD for India is 01AUG10

EB3 India is moving very slowly and could be a long time before spouse gets her Green Card in that category.

Therefore I am thinking for filing an I-130 for her to expedite her GC.

QUESTIONS

1. How should we go about filing an I-130 so she can get GC sooner assuming current FB2A trend for India stays true?
2. Will she still be able to continue to stay in the US once we file her I-130?
3. We plan to travel out of USA in Jan 2011 for a month. Should we file I-130 after coming back? (Reason is current Advanced Parole is based on C(09)-pending AOS. Will sub-clause C change if we file FB2A thereby rendering I-131 (AP) worthless and jeopardizing her return to US?
4. Are there any risks in this process?
5. Any tips from experts?

Thank you for your help.

 

[BigJoe5]

Your post is confusing. On the one hand, you are asking about filing an I-130 for your wife BUT at the same time you mention having filed for her in July 2007?????

Please re-post and clear things up.

If you filed an I-130 in July 2007, it became available a long time ago and you could be talking about filing an I-485.

If you did not already file an I-130 then, you need to file the I-130 ASAP. An I-130 provides NO tangible benefit, it merely establishes a relationship and a place in line for a visa. Once you file the I-130 at the Chicago lockbox, it will take some months to be approved and even longer for the priority date to become current. IF she is still in a valid non-immigrant visa when the PD becomes current, THEN she can file for adjustment.

 

[aaifor]

Thanks BigJoe.

An I485 was filed for her in 2007 as a dependent of my then pending I - 485. I received my GC soon after we filed her I -485. (I was on H-1 and she was on H-4)

No I-130 was filed for her. It is so far an EB case.

I am exploring if filing an I-130 and converting it into a FB category would make it faster while still allowing her to be legally present in the US.

She can be legally present in the US 'Pending AOS' but it is not a valid status.

Hence i am skeptical if filing for I-130 takes away her current 'Pending AOS' authorized stay.

Would filing the I-130 let her remain in the US in continuing 'Pending AOS'? If so great, else I guess we would let the slow EB-3 India take however long it will....

 

[TheRealCanadian]

All you can do is file an I-130 for her. Once the PD becomes current I'd have it processed via CP, since she's not eligible to file a new I-485.

 

[aaifor]

All you can do is file an I-130 for her. Once the PD becomes current I'd have it processed via CP, since she's not eligible to file a new I-485.

Thanks RealCanadian. CP would mean she has to leave the country, correct?

I would rather let EB3 based AOS take whatever time, than have her leave the US.

Alternative could be to wait 1.5 years and then applying for my citizenship. The risk then would be that her underlying I-1485 might become un-approvable after I become a USC. But which could be mitigated by filing a new I-130 petition by me as a USC spouse. Why I think that might be better play is because a USC petitioned spouse doesn't have quota or risk of retrogression to worry about.

So I-130 now appears a dead-end, correct?

 

[TheRealCanadian]

Thanks RealCanadian. CP would mean she has to leave the country, correct? I would rather let EB3 based AOS take whatever time, than have her leave the US.

Yes, but why are you so concerned about this. Is she subject to a re-entry bar? If not, why worry about spending about a week in her home country?

Alternative could be to wait 1.5 years and then applying for my citizenship. The risk then would be that her underlying I-1485 might become un-approvable after I become a USC. But which could be mitigated by filing a new I-130 petition by me as a USC spouse. Why I think that might be better play is because a USC petitioned spouse doesn't have quota or risk of retrogression to worry about.

Seems like you're adding a lot of delay and uncertainty to the process. What's wrong with the method I suggested? What don't we know about that is influencing your thinking?

 

[aaifor]

Good thoughts. She is legit, not subject to any bar and everything is A-OK. She have traveled on Advance Parole in the past and will do again in Jan 2011.


I have a little kid (USC) and don't want to have them live too long away from me. The kid needs mom more than pops at this time

I don't think it is a matter of few weeks. The priority date is at least a few months and processing time could be still longer. So we are looking at around 6 months at the very least. And maybe longer in case some retrogresion happens.

PS: FB2A for India was at least 2006 until a few months ago, so I had discarded this route until someone suggested over Thanksgiving dinner that FB2A India was almost current

 

[TheRealCanadian]

I don't think it is a matter of few weeks. The priority date is at least a few months and processing time could be still longer. So we are looking at around 6 months at the very least. And maybe longer in case some retrogresion happens.

Yes, but with a pending EB3 I-485 she can stay in the US the entire time until her consular interview.

 

[aaifor]

Yes, but with a pending EB3 I-485 she can stay in the US the entire time until her consular interview.

This is what I am aiming for. How does one go about doing it w/o jeopardizing the current EB3 dependent process? And should we start in Feb after we are back?

I don't want the current AP to be affected, hence the question.

 

[TheRealCanadian]

This is what I am aiming for. How does one go about doing it w/o jeopardizing the current EB3 dependent process? And should we start in Feb after we are back? I don't want the current AP to be affected, hence the question.

If you file an FB2A I-130 for her, it won't affect the EB process in any way. It's completely separate.

 

[Jackolantern]

All you can do is file an I-130 for her. Once the PD becomes current I'd have it processed via CP, since she's not eligible to file a new I-485.

Why not? After entering with Advance Parole, she became a parolee, and parole is a status which makes one eligible to apply for AOS (assuming the other usual conditions such as PD being current etc. are met).

aaifor,
Go ahead and file the I-130 ASAP, then file a marriage-based I-485 when the I-130 PD becomes current (in the first half of next year, if the steady progression in F2A continues). There is no need for her to do CP.

 

[TheRealCanadian]

Why not? After entering with Advance Parole, she became a parolee, and parole is a status which makes one eligible to apply for AOS (assuming the other usual conditions such as PD being current etc. are met).

Section 245 of the INA says that in order to file an I-485, one needs to be in a valid non-immigrant status, except if one is filing as an Immediate Relative or can claim 245k or 245i relief. As a parolee, one is non in a valid non-immigrant status.

 

[Jackolantern]

Section 245 of the INA says that in order to file an I-485, one needs to be in a valid non-immigrant status, except if one is filing as an Immediate Relative or can claim 245k or 245i relief. As a parolee, one is non in a valid non-immigrant status.

While you are right that 245(c)(7) requires "lawful nonimmigrant status" when applying for AOS, that section is not relevant here because it is referring to employment-based adjustment applicants, and the OP's wife would be filing as family-based.

And while 245(c)(8) bars people from applying for AOS if they engaged in unauthorized employment or otherwise violated the terms of their nonimmigrant visa, it doesn't require "lawful nonimmigrant status".

The exclusionary criteria in 245(c)(2) refers to maintaining a "lawful status", not "lawful nonimmigrant status". Parole is a lawful status, so she isn't excluded here either.

So under the circumstances, the OP's wife would be included for eligibility under the "inspected and admitted or paroled" of 245(a), while not being hit by any of the exclusion criteria in 245(c). She will be eligible for a family 2A adjustment of status when the family-based PD becomes current, provided she doesn't commit any immigration violations in the interim.

 

[Jackolantern]

Here is an example of a case which was initially denied for a second I-485 filing due to lack of nonimmigrant status, but then it was reopened and approved when the lawyer pointed out that the last entry as a parolee provided them with lawful status at the time of the second I-485 filing, although it wasn't lawful nonimmigrant status.

http://www.murthy.com/news/n_reoapp.html

While the nonimmigrant status had lapsed, this entry on the advance parole showed that the nurse / spouse's legal status was valid as a parolee at the time of the second I-485 filing. Thus, the second I-485 was filed while in a lawful status, though it was not the maintenance of lawful nonimmigrant status, which is most typical. The client was advised to relay this information to the law firm that filed the I-485 case.

...

The argument was simple. The case was denied because the nurse had not maintained nonimmigrant status. We showed that she did not need to maintain nonimmigrant status, as she had left the U.S. and returned on an advance parole prior to filing the second I-485 adjustment application. In the end, the Motion to Reopen was granted and the case approved.

 

[aaifor]

Thank you Jackolantern. Deeply appreciate your detailed responses and case example.

Thank you too RealCanadian for raising good questions.

I am worried that filing I-130 now might create the impression that the spouse is in FB category. (Don't know how the IT systems @ USCIS work)

And this may hinder her re-entry into the US on the current AP after our travel in Jan -Feb 2011. (AP is valid till Oct 2011)

So might it be prudent to just start this in Feb 2011 after we are back?

Waiting another 3 months is not a big deal but the confusion @ the PoE leading to CBP denying her entry is a big worry. (The confusion is on EB vs FB that could arise if I file I-130 now)

 

[Jackolantern]

The I-130 won't cause confusion at the POE. Many people have simultaneous FB and EB petitions and it doesn't cause a problem when entering with AP. As a result of using AP, she will be sent to secondary inspection anyway, where the officer has the expertise and the time to figure it out. Go ahead and file the I-130 now to establish a priority date.

While there have been some incidents of confusion as a result of having EB+FB, that confusion is only when there are I-485's for both the EB and FB. I-130's without I-485's don't cause that confusion.