Change employment-based to marriage-based GC application

L

liu9999

Registered Users (C)
Hi, my wife is currently applying for green card through the employer. She has passed labor certification and I-140 application, but because of retrogression, she can't file I-485 and she has to wait for quite a while to just file I-485. I will get my citizenship soon and we are considering discard her current employment based application and re-file marrige-based green card application for her.

Can we do that? And do we need to cancel her employment-based application? And advise is appreciated. Thanks!
 
Employment AOS vs Family

Liu,
What I would do if I were you is Since you're getting your US cit sometime soon, (you did not mention when because Immigration procedures are like a strategy game, so I'll assume you re getting the cit in 2 months). Petition for her, file the I-130 only, and make sure she keeps her current status, I am assuming she s on H1 and happy with her employer, so that you avoid paying that out of status penalty. Once you receive your Cit interview letter, gather up all the other AOS papers so you can send them right after you get your cit. Once you're US, upgrade the I-130 by phone, they'll ask you about your Cert of Cit # and then send the AOS file to Chicago.

Filing an I-130 now guarantees an earlier PD priority date, but I ve been seeing recently that AOS turnaround time is averaging 4 months.

Please see some of my recent posts. I was in a similar case to your wife.

Bonne Chance
 
Sam, sending in I-130 doesn't have any affect on legal status, and if he files one now he will have to upgrade it later upon getting his citizenship, which is just extra paperwork. I see no reason or benefit in filing I-130 before becoming a citizen.

My advice is to the OP is, once you obtain citizenship, file I-130/I-485 for your wife concurrently. This is the simplest way of doing this.

Also, to the OP, you don't need to cancel her employment based application, its perfectly fine to have concurrent applications in. They will be processed seperately. You don't need to do anything other than file the new forms.
 
Sam877, you are very close in saying I will get my citizenship in two months. I will have the interview in May and possibly take the oath in June. Based on everything I have researched, all we need to do is to file I-130/485/765/131/864 all together. And as an immigration "veteran", I don't think I will need a lawyer's help because marriage-based green card is a very straight forward case. Is it right?

dr_lha, if I don't cancel employment-based application, eventually the two applications will cross path. Will it cause any problems?

And after I get my citizenship, I may take a job assignment in China for about 1 year. Will my wife's interivew be affected (if her case goes well)? Thanks!
 
liu9999 said:
Sam877, you are very close in saying I will get my citizenship in two months. I will have the interview in May and possibly take the oath in June. Based on everything I have researched, all we need to do is to file I-130/485/765/131/864 all together. And as an immigration "veteran", I don't think I will need a lawyer's help because marriage-based green card is a very straight forward case. Is it right?

dr_lha, if I don't cancel employment-based application, eventually the two applications will cross path. Will it cause any problems?

And after I get my citizenship, I may take a job assignment in China for about 1 year. Will my wife's interivew be affected (if her case goes well)? Thanks!
Click to expand...

My situation is exactly as your wife's. My lawyer (company lawyer) advised me to include 693 (medical) so as to avoid RFE for medial. My lawyer was gracious enough to offer me his professional help, I graciously declined knowing the tens of thousands of dollars that he charged our dept for my employment based GC application. My husband and I prepared the whole application package prior to his citizenship oath day, and mailed out the package in just a few days after he obtained his citizenship.

Good luck on your application.
 
I don't think your assignment in China will have a negative effect on her application. Have her keep her employment AOS pending, at least she s guaranteed to apply for an EAD anytime.

Correct, As Dr Iha and you said, it is better to wait until you get your cit, then apply.

Dr Iha, I think this is not the first time you hear me advocating sending an I-130 by itself first. To me It is all about the Priority date. Sending an I-130 today is better than tomorrow especially with my district office being one of the slowest in the nation. I think we got trained in different law schools.Just kidding. I am not a lawyer.

I sent my I-130 back in August 2006 when my wife was a GC holder, then upgraded it three weeks ago when she became Cit and sent the AOS file to Chicago. I just wanted to spread out the cost I guess, in addition my NIW based AOS was not going well and was at the appeals office, and in case it got denied and I had to go see an immig judge, the I-130 petition would help me in getting a stay on deportation. Now we get to the complicated stuff.

Good Luck
 
liu9999 said:
Sam877, you are very close in saying I will get my citizenship in two months. I will have the interview in May and possibly take the oath in June. Based on everything I have researched, all we need to do is to file I-130/485/765/131/864 all together. And as an immigration "veteran", I don't think I will need a lawyer's help because marriage-based green card is a very straight forward case. Is it right?
Click to expand...
Yeah I think you will be fine. Your wife will need to get a medical though.
dr_lha, if I don't cancel employment-based application, eventually the two applications will cross path. Will it cause any problems?
Click to expand...
No. This happens all the time.
And after I get my citizenship, I may take a job assignment in China for about 1 year. Will my wife's interivew be affected (if her case goes well)? Thanks!
Click to expand...
You need to be present for her interview.
 
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