Can GC holder wife file I-130/485 for husband who is in US last 11 months on B1, with expired I-94, awaiting I-539 extension decision

And a supplemental query - If priority date is to be entered from current (Nov) visa bulletin for her EB category, is it the Final Action date or Date of Filing Application?
 
newbie1234 said:
Thanks @newacct as per your experience, is it ok to file without 693 (and send 693 in 1-2 weeks). Not a reason to reject right.
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Yes. You can send the I-693 medical in response to an RFE or, if you don't get an RFE, bring it to the interview.

newbie1234 said:
And in summary, in my case of spouse of employment based GC holder where marriage occurred much before GC, I am going to file 485 & 944 (plus 765/131) and both 130 and 864 are not needed.
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yes

newbie1234 said:
hI @newacct - I asked this once, but still unclear. If wife already GC, then in 485 Part 2 Item 18, do I fill her underlying petition receipt (140 or 485?) and its priority date?
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The receipt number and priority date of her I-140.
 
Hi @newacct - Is there any USCIS or related documentation that actually says 130 need not be filed if principal applicant mentioned spouse name and marriage in 140. Actually I am jittery about this coz wherever I read, it says sponsoring spouse has to petition with 130
 
I am not sure which part you are having doubts about. As you probably know, most immigration categories have derivative beneficiaries. So, for example, if a citizen petitions their sister, when the sister immigrates, her husband and under-21 unmarried children can immigrate with her as derivative beneficiaries, without her needing to file I-130 for them after she gets her green card. Or when a company petitions an employment-based immigrant, like your wife, when she immigrates, her husband (you) and under-21 unmarried children can immigrate with her as derivative beneficiaries, without her needing to file I-130 for them after she gets her green card. This is true no matter if they are doing Adjustment of Status in the US or Consular Processing abroad. The derivative relationship just has to exist as of the day the principal beneficiary becomes a permanent resident (i.e. I-485 is approved or enters the US with their immigrant visa). Here is the section of the USCIS Policy Manual on Adjustment of Status for derivatives.

Perhaps the difference is that you are not sure about whether the derivative can immigrate after the principal immigrant immigrates? They can, and there is no time limit for a derivative to follow to join a principal beneficiary, as long as the principal beneficiary remains a permanent resident (hasn't become a citizen and hasn't abandoned residence), and a visa number is still available for the principal's category and priority date.
 
Basically I wondered why principal does not need to petition (I130 or 824) and only derivative's petition suffices. I mean USCIS does not need any statement or signature from principal - that made me wonder.
What you wrote makes it amply clear @newacct - so is I-130 only for cases where marriage occurs after principal files their GC?
 
So @newacct does this indirectly imply that in this case, a derivative (spouse/child) can file 485/944 even without consent of principal, if they can prove relationship and self-sufficiency exists. If so, it seems US wants derivatives to immigrate...period!
 
Hi @newacct - a quick question please. My I-539 extension allows up to mid-Dec. But receipt notice of 485 may take beyond that. Am I authorized to stay. What if they inform me of rejection of petition after mid-Dec? Does USCIS take same time to reject as well?
 
newbie1234 said:
Hi @newacct - a quick question please. My I-539 extension allows up to mid-Dec. But receipt notice of 485 may take beyond that. Am I authorized to stay. What if they inform me of rejection of petition after mid-Dec? Does USCIS take same time to reject as well?
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Your pending I-539 makes you generally not deportable for as long as it is pending, not just until Dec. But even if your I-539 is denied, no matter before or after December, or even if it is before your I-485 is filed, it doesn't matter, because your I-485 eligibility is not depending on your I-539. Once your I-485 is filed, the pending I-485 protects you from deportation. You won't have proof of your pending I-485 until you receive your I-485 receipt, but that's not a problem unless you are very unlucky and run into a CBP checkpoint in the meantime or something (and even then, if your I-539 is still pending it should not be a problem). When you do receive your I-485 receipt, it will show the "received date" when they received it, and I-485 eligibility will be based on that date.
 
Hi @newacct - Its been 3 weeks since my 485 was received at Phoenix. I had put a credit card to charge, just FYI.
No e-notification yet. Do they send email/text notification if its rejected? I have not called them yet. Even if I call them, I don't know how will they track my petition - by my SSN or I-94 number?
 
Hi @newacct - my I-485 I filed in end-Nov, got rejected with 'additional alien worker information required' and I browsed and realized I did not fill Part 2, item 10
Now my I-539 for B1 extension that I filed in June 2020, remains pending. IF APPPROVED it will extend my I-94 to mid-Dec, which also I have crossed but which is still less than 180 days if I want to file I-485 again as a derivative spouse.
So can I wait till I get I-539 decision OR should I leave US? If I recall, you had suggested back in Nov at the time of my filing 485 that in case 485 gets rejected, I ought to leave.
 
newbie1234 said:
Hi @newacct - my I-485 I filed in end-Nov, got rejected with 'additional alien worker information required' and I browsed and realized I did not fill Part 2, item 10
Now my I-539 for B1 extension that I filed in June 2020, remains pending. IF APPPROVED it will extend my I-94 to mid-Dec, which also I have crossed but which is still less than 180 days if I want to file I-485 again as a derivative spouse.
So can I wait till I get I-539 decision OR should I leave US? If I recall, you had suggested back in Nov at the time of my filing 485 that in case 485 gets rejected, I ought to leave.
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I believe that, yes, an I-485 you file now would be valid if the I-539 is approved to Dec 2020.

I wonder also whether there is also a way to reopen the I-485 that was rejected. I am not sure whether this is possible for rejections due to missing info on the form.
 
@newacct - ok so can I reopen I-485 - is it like an online appeal or resubmit with a "request to reopen" or something else? I will also research this topic.
And I guess benefit of reopening is that I don't have to wait for I-539 approval and also my receipt date remains Nov 2020.
It was rejected due to additional alien info. I am guessing it's coz I missed Part 2 item 10, as I said above
 
@newacct - I await your inputs on how to reopen I-485 if I missed Part 2, Item 10, which is a mandatory field. I researched, found that many applicants got rejections if they either missed Items 3, 9 or Item 10. Many are complaining about it, some are filing again leaving to USCIS discretion, some are informing AILA/NILA to escalate to USCIS etc.
 
@newacct - you suggested I can file I-485 if I-539 is approved (retroactively to Dec2020).
But if I-539 is denied, then do I accrue unlawful presence from June 2020 (when last I-94 expired), or from I-485 rejection, or from I-539 denial
Asking this, since I filed AOS after I-539 was filed and while it was pending and hence 539 may be denied if USCIS sees an AOS when deciding 539
 
newacct said:
I believe that, yes, an I-485 you file now would be valid if the I-539 is approved to Dec 2020.

I wonder also whether there is also a way to reopen the I-485 that was rejected. I am not sure whether this is possible for rejections due to missing info on the form.
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Thanks @newacct - and I was reading how they calculate 180 day exemption (uscis.gov/policy-manual/volume-7-part-b-chapter-8) - so what you are saying is I just resubmit right away instead of waiting for I-539 decision (expected in 2-4 weeks). And if I-539 is denied, should I continue to wait for I-485 decision (that may take 8 weeks) or just leave.
Whether 539 is approved to Dec2020 or denied, I surely think my B visa is voided anyways, is that right?
 
newbie1234 said:
@newacct - you suggested I can file I-485 if I-539 is approved (retroactively to Dec2020).
But if I-539 is denied, then do I accrue unlawful presence from June 2020 (when last I-94 expired), or from I-485 rejection, or from I-539 denial
Asking this, since I filed AOS after I-539 was filed and while it was pending and hence 539 may be denied if USCIS sees an AOS when deciding 539
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No. You only accrue unlawful presence from when the I-539 is denied, or from when the I-485 is denied, whichever is later.
 
newacct said:
No. You only accrue unlawful presence from when the I-539 is denied, or from when the I-485 is denied, whichever is later.
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Thanks @newacct and so to rephrase, I don't accrue unlawful presence from past date when & if 539 is denied. Instead, only my B1 visa will be voided since I overstayed.

You also suggested/wondered if 485 can be reopened. How? I consulted with a lawyer who said file 485 again with a request to "use discretion as leaving Part 2 Item 10 blank meant No by default and hence consider receipt date of my prior submission" - there is some legal case going apparently about blank fields/spaces. Your view?

Also, you replied - " I-485 you file now would be valid if the I-539 is approved to Dec 2020" - does it mean if 539 is denied (in 2-4 weeks), then 485 will surely be rejected/denied later?
 
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