Applying for spouse with I-485 and 245I

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wayne57

Registered Users (C)
This is my first post, and I just want to say this is a great forum with tons of information. My wife and I are trying to go through the process ourselves because we cannot really afford a lawyer at this time.

My story is this, I am a US citizen, and my wife came to the country about 4 years ago EWI. We got married about 2 years ago. Well it turns out that her mother, also in the country, had an I-140 filed for her in 2000. She was therefore eligible for AOS under 245i. Her petition was approved and she recently received her green card. At the time the I- 140 was filed, my wife was under 21 so she qualifies as a derivative beneficiary to 245i, correct?

Now, this is the part that is confusing me. We spoke to an attorney, and he said that she (my wife) had to prove she was in the country in Dec. 2000. He said we were out of luck because she didn't enter the country until 2005. However, I read that only the primary beneficiary of 245i had to prove their presence. Their spouse and children who were under 21 at the time do not.

I even mentioned that to the lawyer, and he said no, everyone has to prove they were present. Did he make a mistake?

Now, I'm looking at filling the forms out myself, and everything seems fairly straight forward, except on the supplement A to form I-485. I do not see a box to indicate that my wife is eligible for 245i as a derivative beneficiary and is not the primary, thus showing she does not have to provide evidence of being in the country.

Sorry for the long post, but I would appreciate any information! I'm really not sure what the next step is! Thanks!
 
Thank you for the quick reply, and I have read that section. However, on the Questions and Answers for Section 245i, question 13 states:

"Q13: Do dependent family members also need to prove that they were physically present in the United States on December 21, 2000?".

"A13. No. The dependent spouse or children of the principal beneficiary do not need to prove that they were physically present in the United States on December 21, 2000. Only the principal beneficiary of the immigrant visa petition filed after January 14, 1998, and on or before April 30, 2001, is required to meet the physical presence requirement.

uscis.gov/files/pressrelease/Section245ProvisionLIFEAct_032301.pdf


This next part is from another memo, "Adjustment of status under section 245i...." from Jan 26, 2001. Under section 2 of Changes to section 245i, the first paragraph under "Evidence of physical presence on Dec. 21, 2000" states:

Aliens adjusting status under section 245(i) based on a visa petition or application for labor certification filed after January 14, 1998, and on or before April 30, 2001, must prove physical presence in the United States on December 21, 2000. Note: The physical presence requirement only applies to principal applicants for adjustment of status under section 245(i) of the Act. Dependent spouses and children do nut need to demonstrate physical presence on December 21,
2000.

uscis.gov/files/pressrelease/245i.pdf


There is also a mention that only the primary beneficiary must be present in the March 9, 2005 memo (3)(B)(3).

uscis.gov/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2005/245iclarification030905.pdf


So, I read these official memos as instructions to the officers on how to interpret 245(i)(1)(C). If these do not apply to my situation, or were superseded by another document, could you please show me?

Sorry for the long post, I've been putting a lot of effort into this as it's very important to me. Thank you!
 
wayne57 said:
This is my first post, and I just want to say this is a great forum with tons of information. My wife and I are trying to go through the process ourselves because we cannot really afford a lawyer at this time.

My story is this, I am a US citizen, and my wife came to the country about 4 years ago EWI. We got married about 2 years ago. Well it turns out that her mother, also in the country, had an I-140 filed for her in 2000. She was therefore eligible for AOS under 245i. Her petition was approved and she recently received her green card.
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Wayne,

I am not sure I understand what you need help with. Your wife has a green card, so what it is that you are filing for again? Please see above based on your initial post.
 
Hey, I'm sorry that I wasn't very clear in my original post. My wife's mother has her green card. My wife is currently illegal and, she (my wife) entered the country EWI in 2005. My mother in law got her green card with 245i, and because my wife was under 21 at the time her mothers I-140 was accepted(april 2001), she(wife) is automatically a beneficiary even if she wasn't in the country. Hopefully that made some sense! Thanks again.
 
wayne57 said:
Hey, I'm sorry that I wasn't very clear in my original post. My wife's mother has her green card. My wife is currently illegal and, she (my wife) entered the country EWI in 2005. My mother in law got her green card with 245i, and because my wife was under 21 at the time her mothers I-140 was accepted(april 2001), she(wife) is automatically a beneficiary even if she wasn't in the country. Hopefully that made some sense! Thanks again.
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After digging deeper, it seems you are right. 8 CFR 245.10 says that the derivative don't need to show the physical presence. Please let us know how it goes after you file the concurrent I-130, I-485 etc..
 
wayne57 said:
Hey, I'm sorry that I wasn't very clear in my original post. My wife's mother has her green card. My wife is currently illegal and, she (my wife) entered the country EWI in 2005. My mother in law got her green card with 245i, and because my wife was under 21 at the time her mothers I-140 was accepted(april 2001), she(wife) is automatically a beneficiary even if she wasn't in the country. Hopefully that made some sense! Thanks again.
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I think your lawyer is INCORRECT, and based on the law which you have outlined, I will go with your view. It is possible the lawyer is trying to make some $$$ by misleading you.
 
Thank you guys for confirming what I had been reading. That is quite a relief. I have a few more questions though.


On supplement A to form I-485 in Part B, question 2 reads, "I am filing supplement A to form I-485 because:"

We would select "d. I am the beneficiary of an application for a labor certification filed on or after Jan. 15, 1998, and on/before Apr. 30th, 2001." ??

It then says you must provide evidence demonstrating physical presence.

I would include the Notice of Action from my Mother in law's labor cert. to prove my wife is eligible for 245i. Is that enough, or do I also need to somehow write in that she isn't required to submit evidence? Maybe they will just know that since she is not the primary beneficiary it isn't required. I don't want any confusion on their part though!
 
Hi, I don't see how your lawyer can make more money by misleading you, because if he had to file under 245i it would mean he would have more work to do, so im not sure misleading you would make him more $$$ ?

Anyway..

The same thing happened to me, I believe my lawyer is quite credible which means quite expensive (lol) I was about 11 years old when my mother got petitioned before the 2000 deadline thing which made her eligible for 245i which in turn made ME eligible for the 245i , but still my lawyer asked me for documents that proved my presence before 2000..
I also read the same things that you read but even though it clearly says right there that your wife & I whom were under 21 at the time do not need to prove presence, for some reason we still kinda do have to :confused:
I also questioned my lawyer about this but luckily i was here way before 2000, and it was no problem to provide documents for evidence.
Unfortunately this does sound like a lot of bad news for you and your wife..
However I've read through my lawyers website that they file law suits against USCIS which are similar in nature to your case (i.e. when some things are written in clear daylight but yet USCIS wrongfully denies you)
So I do believe you have a fighting chance
Lawyers can be very costly but in situations like you and your wife's you cannot afford to make mistakes. do alot of research dont just hire an attorney bcus his face is on a bus stop! :rolleyes: like a lot of people do!

Best of luck to you. I hope everything goes well.
 
Thanks for your reply. We haven't submitted any applications yet. I did a lot more research after my lawyer told me that. We decided that we were going to try to do it ourselves. After all, I shouldn't be telling him what to do, and everything looks pretty straight forward, especially with help from this forum.

I'm positive my wife doesn't have to prove physical presence in Dec. 2000, and she can't, because she wasn't here! I'm just going to include a note that mentions that part of the law when I file the supplement A to I-485. I will also bring some copies with me to the interview in case they were to say something about it. I really don't see how they could give us a hard time about it.
 
A good piece of advice is found here: http://www.justice.gov/eoir/vll/qapracmanual/pracmanual/AppJ.pdf especially on page 12 regarding including copies of reference materials with your submission. The BIA is discussing briefs filed with appeals and motions to the Board but the principle holds true for other submissions. Basically, if you just cite something, you can't be sure the officer will look it up. Make it easy and include a copy of the item that you reference and go ahead and highlight and flag it (post-it tabs are good). Print out the memo or CFR page or INA page and include it as evidence.

It takes more time to reach a decision when the adjudicator has to do their own research.
 
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Including copies of the item sounds like a good idea. I just didn't want to risk insulting them by making it seem like they don't know the rules when they deal with this stuff everyday!
 
I've got another question, when I'm filling out the I-485, what evidence do I need to include from my wife's mother (primary beneficiary)? I have her NoA for her I-140 that has the priority date. Do I need to include any evidence that she received her green card? If I do, what would that form be called? Thanks!
 
wayne57 said:
I've got another question, when I'm filling out the I-485, what evidence do I need to include from my wife's mother (primary beneficiary)? I have her NoA for her I-140 that has the priority date. Do I need to include any evidence that she received her green card? If I do, what would that form be called? Thanks!
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Thw notice is a good start. Will she let you make a copy of the front and back of her greencard? Your wife will also need to show proof of relationship to the greencardholder upon whose I-140 she is being "grandfathered" for 245(i) purposes. USCIS may need to examine mom's file and will need the A# as shown on the card.
 
I can get a copy of her green card, that shouldn't be a problem. Would that, and a copy of the I-140 cover everything? We would use her birth certificate to prove her relationship to her mother. Thanks
 
wayne57 said:
I can get a copy of her green card, that shouldn't be a problem. Would that, and a copy of the I-140 cover everything? We would use her birth certificate to prove her relationship to her mother. Thanks
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If USCIS needs anything further, they will ask for it.
 
I am in the process now of filling out the forms, so I will probably have a lot of questions over the next few days.

My first question is, about question# 22 on the I-130. It states "Complete the info below if your relative is in the US and will apply for adjustment of status. Your relative is in the US and will apply for adj. of status to that of a lawful perm. resident at the USCIS office in:"

It asks for city and state. Do I put the city that we are currently living in, or do I put a nearby major city where I would like to do our interview, even if it's across the border in another state?
 
Another quick question. Is it important to submit an I-765 form? My wife is currently working from home babysitting. She isn't going to look for work anywhere else. Do we still need to submit this? We have been paying taxes on her earnings. Thanks!
 
wayne57 said:
I am in the process now of filling out the forms, so I will probably have a lot of questions over the next few days.

My first question is, about question# 22 on the I-130. It states "Complete the info below if your relative is in the US and will apply for adjustment of status. Your relative is in the US and will apply for adj. of status to that of a lawful perm. resident at the USCIS office in:"

It asks for city and state. Do I put the city that we are currently living in, or do I put a nearby major city where I would like to do our interview, even if it's across the border in another state?
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If you have an address to use for now in the place you are in the process of moving to, use it. If not, wait until you get a new address. The USCIS Office jurisdiction is based on your residence address. If you filed based on a current address and move to a new jurisdiction, you can request a transfer but it may cause a delay.
 
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