Approved ND 08/16/02; Not a Typo!!

[Vic485]

(I had posted this approval yesterday on rupnet as ‘fastGC’. I was as surprised as everybody else at this fast turnaround. After all the questions I have received since yesterday, I am explaining the case and responding to the questions to the best of my knowledge)

This approval is for my wife BUT she was approved as direct beneficiary of her own EB3 petition.

If it helps explain anything:
September 2001:My wife first filed an I-485 application with me as a primary and her as a dependent. I later changed job, using the AC21 rule
October 2001: Notifications received with assigned A#s
August 2002: As a precaution, my wife filed another I-485 petition through her own employer.
January 2003: I get an RFE on my I-485 petition (answered Feb 03)
February 2003: My wife is approved for PR through the petition filed by her own employer.

NOTE THAT: I am still waiting for approval on my own petition!

The only explanation I can figure out is that she and I have adjacent A#s (assigned in October 2001) and all I-485s filed subsequently are directed to the same A# file. So when they opened our files in Jan 03, they simply adjudicated the one easiest to approve.

The order of processing, I still think, is determined by LIN# and not the A#. But, I have also read that at the time of adjudication, the entire contents of your entire file (A#) are re-reviewed including all the filed I-485s against that file number and also the I-140 (what some lawyers call the re-adjudication of I-140 at the time of AOS). In this case, I think, while reviewing her file (as a dependent), the adjudicating officer came to the conclusion that my wife’s case was better adjudicated using her petition as a primary (which was complete at that point with fingerprinting and background checks) than as a dependent with added AC21 issues.

I am filing another I-485 petition as her dependent now: I guess now I should not have to worry about AC21 anymore!!!

Good Luck to you all.

 

[Rsur]

Congrats again..

and thanks for honoring my request to post in this forum. Hope some freak luck hits all of us too.

 

[bkd52]

I your wifes 485 is approved, how can you now file your dependent 485 after GC approval?

Filing for dependent has to be done prior to the primary applicant's approval.

I am not sure if you can do that. You may have to rely on your AC21 filing for your GC.

 

[Vic485]

Filing dependent I-485 after primary's approval

Bkd:

Great Question.

Yes, you can file as a dependent even after the primary’s AOS is approved. The ONLY conditions are:
- You must have married prior to the approval of primary
- The dates must be current for the primary’s category
- You must be in legal status (this assumes you would not resort to 245k/i)

The reason why you may have this misconception (and it is a fairly common one) is because the filing of dependent I-485 after primary’s approval does not apply to most people who are in a non-immigrant status. Here are the most common cases where even after marriage the primary does not file for dependent’s AOS.

CASE A: Married, dependent not in the US, dependent I-485 not filed.
Immediately after the I-485 approval of primary, his/her non-immigrant status (H1, L1 etc) is lost. In that case, for example, the primary husband cannot get his wife to the US from abroad on an H4 visa. They would have to wait several months for a counselor interview. Only after that approval could the wife join the husband in the US.

CASE B: Married, dependent in the US, dependent AOS not filed.
Again, after the I-485 approval of primary, his/her non-immigrant status (H1, L1 etc) is lost. In this case, the spouse is left without any status as the underlying basis for her H4 is lost once the H1 gets revoked upon approval (Big trouble!!)

CASE C: Not married/ Married after primary’s AOS approval
Clearly the worst possible case. Now, one is forced to go through the Family based petition (filing of I-130). This involves a wait of several years (at least 6 years).

Hence, it is commonly suggested that you get married and file your spouse’s I-485 prior to your own I-485 approval. My case is different because I already filed for AOS and have EAD/AP etc and my status is unaffected by the loss of my wife’s non-immigrant status. I could file another I-485 petition as dependent and have the ‘basis of adjustment’ of status changed.

Hope it clarifies the issue.

 

[frodo]

Yes, you can file EB derivative I485 for your spouse even after your 485 approval provided your marriage date is before your approval date.

It happened to my niece - she got married a few days before her husband's case was approved. They sent in a 485 for her (even though their lawyer wasn't sure if it was the right thing to do) after the approval notice was received, and her case got approved pretty quick.

However, it is advisable to send in the application as soon as possible. In my niece's case, she was in India when her husband's case was approved. They did not know about it and applied for her H4, got it, travelled on h1/h4 to the US, only to find that the case was approved.

This happened mid 2001, though. Things might have changed.......or maybe they were lucky!

 

[jarekf]

pattern

I think I might have seen a pattern here. My i485 was approved very quickly after RFE (9 days). It was very unusual. But there is something that might have caused that. I was waiting for EAD during that time. I think it could be, that the officer was assigned for EAD approval, but because he/she saw that the case is complete, he/she approved the case instead.

It might not be a bad idea to apply for anything that requires officer to look into i485 while waiting for approval (especially after RFE). If everything is complete it may accelerate the approval greatly.

Just a thought.