After interview, saying waiting for Employee based to merge with Family based application to approve

[littlemelon]

I have an Employee based application pending, and I submitted a marriage based application.

We have the interview today, Everything went well, she approved the I-130 in front of us and she said she is waiting for my employee based application material to merge with this family based one then she will approve the family based application and probably deny the employee based application.

I told her not to deny the employee based one because it may be approved within the two year frame, so I don't need to submit the I-751 to remove the conditional. But she said that one will probably be denied.

Do you think this is reasonable? Is there a way for me to do to request them to leave the employee based application open?

She said she will check every two weeks to see if my materials are merged, then some one else(may not be her) will approve this family based I-485. She said if no news in 90 days, I can call infopass to check. Does this mean I can't contact them before 90 days? What if they denied the employee based application, can I contact them to re-open it, so I can wait for the priority date to be current then it can be approved?

Thank you very much for any inputs!

 

[Jackolantern]

Sounds like they need to merge your two different A-files. Do you have 2 different A-numbers for both I-485's? Which was applied first, the I-130 or I-140? On the one that was applied second, did you specify the same A# you received with the first? If not, that may have caused this delay and merge.

They have to deny one if they approve the other. Once you are a permanent resident, you can't have another I-485 remain pending.

Of course you can and should contact them if you find out the EB case has been denied. If they deny the EB case, you need to make sure the FB case is already approved or approved soon after. Or if there is any other significant event occurring on either case contact them. But don't contact them within 90 days just because you're impatient, or they will just tell you to wait another 90 days.

 

[Triple Citizen]

Once your CR status is approved, your emplyoment based I-485 is dead. Simple as that.

Do you think this is reasonable? Is there a way for me to do to request them to leave the employee based application open?

 

[littlemelon]

I only have one A# for both cases. My I-140 was approved 2 years ago and now I-485 is pending for the EB case. My Family Based case was submitted this year.

The thing is the family based only gives me a 2 year card, I have to go through the process again after 2 years to convert it. I'm sure my employee based will be approved within 2 years. So I can get a unconditional card directly without filing I-751 for this.

Is there a way to keep the employee based open? Should I contact them before they make a decision? Once they apporve the family based and close the employee based, can I argue to re-open it?

Thanks.

Sounds like they need to merge your two different A-files. Do you have 2 different A-numbers for both I-485's? Which was applied first, the I-130 or I-140? On the one that was applied second, did you specify the same A# you received with the first? If not, that may have caused this delay and merge.

They have to deny one if they approve the other. Once you are a permanent resident, you can't have another I-485 remain pending.

Of course you can and should contact them if you find out the EB case has been denied. If they deny the EB case, you need to make sure the FB case is already approved or approved soon after. Or if there is any other significant event occurring on either case contact them. But don't contact them within 90 days just because you're impatient, or they will just tell you to wait another 90 days.

 

[JohnnyCash]

Is there a way to keep the employee based open? Should I contact them before they make a decision? Once they apporve the family based and close the employee based, can I argue to re-open it?

Yes, you can keep your employee based application opened if you do like to be on a deportation proceedings. Why? Because keeping employment based application opened means closing of marriage based case...that means, denial of marriage based case application...which means asking you to leave the country unless you have a valid visa to stay here. One cannot keep two cases opened at the same time...one has to be denied/withdrawn before one can be approved. If you want marriage based case to be approved then employment based application must be either withdrawn or denied. You cannot keep both cards in your favor for your own comfortability.

 

[littlemelon]

Thanks for the replies.

So if my Employee based application will be approved soon, like in a year, and I feel that I don't want the family based conditional GC, is it possible for me to tell them to keep the employee based and withdraw this family based one even if after the interview and it's going to be approved? If so, how can I do it since they told me to wait for the approval and not to contact them within 90 days.

Thanks very much!

 

[Jackolantern]

You should have thought of those things before applying for the FB green card. Given that you were already allowed to stay and work legally based on your employment-based I-485, you could have simply waited until you almost completed 2 years of marriage before filing the marriage-based I-485. That way, either your EB case would have been approved before the marriage case, or you'd get a 10-year card for the marriage case as a result of completing 2 years of marriage before the interview.

But now that it got to this point, you are risking being left with nothing if you try to withdraw the FB case. Different teams within USCIS do not communicate quickly and consistently with each other; they may have already initiated actions to deny your EB case. If you request a withdrawal of the FB case, they might not be alert enough to stop the denial of the EB case, and that would leave you with both being terminated.

How long have you been married at the time of the interview? If 2 years or more, you should get a 10 year card.

 

[littlemelon]

Thank you.

I did consult a lawyer before I submitted the FB case, the lawyer told me my EB case will be still open even if the FB case is approved, unless I withdraw it, that's why I submitted the FB case. But now this messed things up.

Yes, it is a little risky. Is it ok if I call infopass about this? It's just a couple of days after the interview, I can ask them if they can stop the process and keep the EB case. The thing is it's not over 90 days, I don't know if I can contact them via infopass.

Thanks.

You should have thought of those things before applying for the FB green card. Given that you were already allowed to stay and work legally based on your employment-based I-485, you could have simply waited until you almost completed 2 years of marriage before filing the marriage-based I-485. That way, either your EB case would have been approved before the marriage case, or you'd get a 10-year card for the marriage case as a result of completing 2 years of marriage before the interview.

But now that it got to this point, you are risking being left with nothing if you try to withdraw the FB case. Different teams within USCIS do not communicate quickly and consistently with each other; they may have already initiated actions to deny your EB case. If you request a withdrawal of the FB case, they might not be alert enough to stop the denial of the EB case, and that would leave you with both being terminated.

How long have you been married at the time of the interview? If 2 years or more, you should get a 10 year card.

 

[Jackolantern]

I did consult a lawyer before I submitted the FB case, the lawyer told me my EB case will be still open even if the FB case is approved, unless I withdraw it, that's why I submitted the FB case.

That was terrible advice. Any immigration lawyer should know that once one I-485 is approved, any other pending I-485s will be canceled soon.

Yes, it is a little risky.

It is VERY risky. Why are you so concerned about 2 year vs. 10 year green card, that you're willing to be risk being left with nothing? Are you already worried that your marriage won't last 2 years?

And what makes you so confident that your EB case will be approved within 1 or 2 years? Unless you are in EB2 ROW or EB1, you may experience unpredictable retrogression, making it take 3 years or longer.

It's just a couple of days after the interview, I can ask them if they can stop the process and keep the EB case.

That would be useless. They will tell you yes, and then due to their own internal miscommunication the EB case probably will get dropped anyway, because the other guy handling the EB case didn't get the memo soon enough to stop the EB cancellation. Your own case is evidence of their miscommunication; if the officers handling the EB and FB cases communicated properly, they wouldn't be waiting to "merge" the files at this point in time. They couldn't be trusted to organize something that they had several months to handle, but now you're going to trust them to act quickly enough to change direction with the EB and FB cases without screwing things up for you?

 

[Triple Citizen]

Why are you so skeptical of your marriage not lasting 2 years???

I can ask them if they can stop the process and keep the EB case.

 

[littlemelon]

Hi, I'm not skeptical about the marriage at all. I just don't want to go through the I751 for all the waiting and interview again. I'm tired of it. I saw many people's I751 still pending after it's submitted for one year. It's really annoying.

If it's ok to withdraw the marraige based case, I will do it since my employee based priority date is close. I just want a unconditional card once for all instead have to do this over again in 2 years and wait for another one year.

Thanks.

Why are you so skeptical of your marriage not lasting 2 years???

 

[Triple Citizen]

I-751 happens to be the easiest of petitions in my honest opinion and only 10% of applicants are ever interviewed. Your call at the end of the day. Choose wisely!!!

Hi, I'm not skeptical about the marriage at all. I just don't want to go through the I751 for all the waiting and interview again. I'm tired of it.

 

[Jackolantern]

If it's ok to withdraw the marraige based case, I will do it since my employee based priority date is close. I just want a unconditional card once for all instead have to do this over again in 2 years and wait for another one year.

If you want to avoid major hassles, leave the marriage case as is and let them approve it. Would you prefer to end up in removal proceedings or an appeal process if they don't preserve your EB case when withdrawing your FB case? Or they continue the EB case, then you get laid off and can't find an AC21-compliant job quickly enough?