Citizenship eligible but spouse's I-485 still pending- what to do?

[crapolaGC]

Ok, I were one of the few lucky ones from India EB3 who got their 485 approved in Sept 2007 (when USCIS did the all category current fiasco!). My dependent was not approved for some reason, and I recall that happened with many other folks as well. Now I'm eligible to file for N400 but not sure what will happen to the dependent's still pending I-485 (my priority date is Jan 2003 EB3 India). Anyone else in this situation?

My concern is this:
1) Are there any legal hurdles for the pending 485 if I (the primary) get the citizenship approved? If so then should I just wait until the pending 485 is approved?
2) If I go ahead and file N400 and when it gets approved, do we need to refile for the 485 as spouse of US citizen?

Any inputs or experience with this situation?

thanks!

 

[Jackolantern]

The derivative I-485 may be denied if the primary becomes a citizen while the I-485 is pending. So if you pursue citizenship before your spouse's I-485 is approved, be prepared to file I-130 and a new I-485 ASAP for your spouse after you become a citizen.

 

[crapolaGC]

thanks for the feedback! I did found some old threads here and looks like USCIS did rejected pending derivative 485s if primary has already become a US citizen.

I guess the best way would be to go ahead with the citizenship, but make sure the day one gets the naturalization certificate straight away file the I-130 and the new 485 w/ with the EAD/AP. You concur?

 

[Jackolantern]

thanks for the feedback! I did found some old threads here and looks like USCIS did rejected pending derivative 485s if primary has already become a US citizen.

I guess the best way would be to go ahead with the citizenship, but make sure the day one gets the naturalization certificate straight away file the I-130 and the new 485 w/ with the EAD/AP. You concur?

Yes. Get the I-693 medical done ahead of time so the results will be ready in hand by the time you complete the naturalization oath, so you can send the whole application package immediately.

However, if you have children who are over 21 or close to 21 and have their derivative I-485 still pending, avoid naturalizing until they get their green cards, because I-485 denial would make them out of status and you won't be able to immediately file a new I-485 for them.

And if the PD becomes current before you take the oath, it might be better to postpone the oath in the hope that your spouse's existing I-485 will get approved.

 

[-me-]

thanks for the feedback! I did found some old threads here and looks like USCIS did rejected pending derivative 485s if primary has already become a US citizen.

I guess the best way would be to go ahead with the citizenship, but make sure the day one gets the naturalization certificate straight away file the I-130 and the new 485 w/ with the EAD/AP. You concur?

Well, it may be a bit more complicated, if your wife is working. From the moment when her EB3 I-485 gets rejected (along with EAD), she's not eligible to work until she gets another EAD based on her new IR I-485, which can take a month or two.

Also she may accrue some illegal presence in the U.S., thus she'd better not travel abroad until she gets her new I-485 approved.

EB3 India is 08OCT02 in the September bulletin. I would at least wait until the new FY, when it can advance to 03.
One more thing... Her EB3 I-485 will be approved almost automatically, while the marriage based one is a bit of a hassle with the mandatory interview, conditional GC for two year, removing condition after that, etc.

 

[Jackolantern]

Well, it may be a bit more complicated, if your wife is working. From the moment when her EB3 I-485 gets rejected (along with EAD), she's not eligible to work until she gets another EAD based on her new IR I-485, which can take a month or two.

Fortunately, it is likely to take USCIS a few weeks to months or even a year to realize the connection between the OP's naturalization and the dependent I-485 and then issue the denial. However, it is important to avoid naturalizing when the spouse in the process of EAD renewal, because the EAD renewal process will make them look at the pending I-485, which could trigger the denial when they see what is going on.

Also she may accrue some illegal presence in the U.S., thus she'd better not travel abroad until she gets her new I-485 approved.

Illegal presence or not, traveling abroad after the OP's naturalization and before receiving the new Advance Parole would be dangerous, because the I-485 denial would make her unable to use the old Advance Parole.

 

[-me-]

Fortunately, it is likely to take USCIS a few weeks to months or even a year to realize the connection between the OP's naturalization and the dependent I-485 and then issue the denial.

I personally wouldn't play such a game with USCIS. It may (highly unlikely though, but still) turn out really bad if she gets caught working illegally while the new I-485 is pending.

Illegal presence or not, traveling abroad after the OP's naturalization and before receiving the new Advance Parole would be dangerous, because the I-485 denial would make her unable to use the old Advance Parole.

if she manages to accrue IP, she'd better stay in U.S. untill finally approved, even with an approved AP.

 

[crapolaGC]

good discussion...

what I'm not clear is will the spouse's current EAD/AP become invalid the day primary gets the naturalization oath?

 

[Jackolantern]

what I'm not clear is will the spouse's current EAD/AP become invalid the day primary gets the naturalization oath?

No. Her I-485 will remain active until USCIS denies it, and even if they deny the I-485, the EAD still is valid until expiration if USCIS doesn't explicitly state that the EAD is revoked (however recently they've been including EAD revocation with the I-485 denial notice). So she will be OK to keep working until receiving the EAD revocation notice.

 

[crapolaGC]

No. Her I-485 will remain active until USCIS denies it, and even if they deny the I-485, the EAD still is valid until expiration if USCIS doesn't explicitly state that the EAD is revoked (however recently they've been including EAD revocation with the I-485 denial notice). So she will be OK to keep working until receiving the EAD revocation notice.

ok, thanks!

I guess the real question for me is if it is worth taking any risk to go thru my citizenship or wait out for her current 485 approval. My priority date is still good 4 months from where it stands right now but who knows how long will it take to get current for me. The way dates have progressed for India EB3 in past year is pretty much a week every month so it is quite possible that I can get my citizenship done and her new EAD/AP thru new 485 done before USCIS even looks at her old 485. I guess the other wrinkle is, would USCIS somehow end up looking at my immigration history as part of N400 and take up her 485?

 

[Jackolantern]

I guess the other wrinkle is, would USCIS somehow end up looking at my immigration history as part of N400 and take up her 485?

Unlikely, but not impossible. The risks are low, but there are risks. Ultimately you and your wife just have to decide whether it is worth it to go for citizenship sooner and take the risk, or wait another 6-12 months and hope for PD movement and I-485 approval.

If she's not working, there would be nothing to worry about because there's no way USCIS will issue an I-485 denial before they get the new I-485 (assuming it is mailed no later than 1 or 2 days after the oath). The problem is only with the possible break in continuity of the EAD, because the new EAD will take around 2-3 months.

That Summer 2007 fiasco produced several cases like yours where the primary got the green card but derivatives got stuck in retrogression. If you decide to wait it out, hopefully there will be a court case or regulation that clarifies that it was wrong of USCIS to deny the derivative I-485 based on naturalization of the primary, then you won't have to wait or worry any more.

 

[Jackolantern]

if she manages to accrue IP, she'd better stay in U.S. untill finally approved, even with an approved AP.

There won't be any unlawful presence if she files the new I-485 right after the oath. USCIS isn't going to deny the old I-485 before the new I-485 reaches them. And even if they denied it that fast, that would only be a couple days max of unlawful presence, which isn't enough to trigger a ban from the US (this is assuming there was no previous unlawful presence to add to the more recent total).

 

[-me-]

There won't be any unlawful presence if she files the new I-485 right after the oath. USCIS isn't going to deny the old I-485 before the new I-485 reaches them. And even if they denied it that fast, that would only be a couple days max of unlawful presence, which isn't enough to trigger a ban from the US (this is assuming there was no previous unlawful presence to add to the more recent total).

Guess what will happen if they kick back the new I-485 for any reason (check bounced by a mistake, missing signature, lack of documentary support, etc). Not to mention, when sent via USPS (which they always do), it may come up with a whole bunch additional risks. Again, this is unlikely, but possible to get into removal procedures upon the old I-485 denial.

 

[-me-]

The way dates have progressed for India EB3 in past year is pretty much a week every month so it is quite possible that I can get my citizenship done and her new EAD/AP thru new 485 done before USCIS even looks at her old 485.

They will pull out her old case when receive the new I-485 application.

I guess the other wrinkle is, would USCIS somehow end up looking at my immigration history as part of N400 and take up her 485?

Nobody can say for sure, because it depends on the interviewing officer AND it's a rare situation.

 

[-me-]

That Summer 2007 fiasco produced several cases like yours where the primary got the green card but derivatives got stuck in retrogression. If you decide to wait it out, hopefully there will be a court case or regulation that clarifies that it was wrong of USCIS to deny the derivative I-485 based on naturalization of the primary, then you won't have to wait or worry any more.

That would be fair, but ... justice has nothing to do with fairness...

 

[Marusia_GC]

My intuition tells that it is better not to risk and better to wait for another few months and even a year till her I-485 is approved. But if I were you, I would struggle for her I-485 approval as soon as possible, writing letters to Senators and Representatives, Ombudsman, etc. if the case is delayed beyond the effective date for India EB3 January 03 applications.

 

[crapolaGC]

They will pull out her old case when receive the new I-485 application.

This is actually something that we are concerned about, they may pull her old 485 on receipt of the new 485 and deny it (the old one) straight away. This will not make her illegal but will take away her work authorization. I think now that I have better understanding of the whole situation, I'll discuss it with some attorney and will make a final decision. Most likely will wait out for her 485 approval.

 

[isitanylonger]

Get a lawyer

This is actually something that we are concerned about, they may pull her old 485 on receipt of the new 485 and deny it (the old one) straight away. This will not make her illegal but will take away her work authorization. I think now that I have better understanding of the whole situation, I'll discuss it with some attorney and will make a final decision. Most likely will wait out for her 485 approval.

Frankly, I would get a legal opinion. Shouldn't be more than 15 minutes of a lawyers time, though they charge you for an hour. Still almost nothing. I had a straight forward case and still engaged a lawyer for 1/2 hour to go over the process with me. Well worth it.

 

[-me-]

I had a straight forward case and still engaged a lawyer for 1/2 hour to go over the process with me. Well worth it.

If you need a legal advice on the straightforward order... well ... then it's not that straightforward...

 

[Jackolantern]

This is actually something that we are concerned about, they may pull her old 485 on receipt of the new 485 and deny it (the old one) straight away. This will not make her illegal but will take away her work authorization. I think now that I have better understanding of the whole situation, I'll discuss it with some attorney and will make a final decision. Most likely will wait out for her 485 approval.

Please give us an update about what the lawyer said, especially if they found a particular court case or regulation that clarifies the issue one way or the other.