Yes, I'll update this thread about the attorney's feedback...could be a while as I want to wait for Oct to see how dates move. thanks!
Citizenship eligible but spouse's I-485 still pending- what to do?
- Thread starter crapolaGC
- Start date
Yes, I'll update this thread about the attorney's feedback...could be a while as I want to wait for Oct to see how dates move. thanks!
Ok, found something interesting...
Read this link..
By the petitioner's naturalization. Effective upon the date of naturalization of a petitioner who had been lawfully admitted for permanent residence, a currently valid petition according preference status under section 203(a)(2) of the Act to the petitioner's spouse and unmarried children under twenty-one years of age shall be regarded as having been approved for immediate relative status under section 201(b) of the Act.
Doesn't this make it clear that as soon a LPR naturalizes, an I-130 is good enough and the pending I-485 automatically qualifies to the immediate relative category? This should eliminate the scenario where old 485 is denied and loosing the EAD/AP from that 485.
Jackolantern
Registered Users (C)
That's a different situation. They're talking about cases where the petitioner has filed I-130 under the family category F2A, and then upon the naturalization of the petitioner the case is upgraded to immediate relative. But with your EB case that provision doesn't apply because the petitioner is your (former?) employer, not you, and it's an employment-based case.
Your naturalization would give your wife the right to file I-485 as an immediate relative if you filed I-130 for her, but that doesn't do anything to help her old employment-based derivative I-485. The old I-485 and its associated benefits (EAD, AP) would still be in danger as a result of your naturalization. She wouldn't have to worry about becoming out of status, because the new I-485 would maintain her right to remain in the US legally, but her EAD would be at risk of being revoked before the new EAD is approved (although that is unlikely, because USCIS usually doesn't move that fast, especially for denials which normally require supervisor review).
(My situation is identical to yours - I got my GC in July 2007 and filed for my wife in 2007. EB3 India)
See identical thread I had raised a while ago http://forums.immigration.com/showthread.php?546847-Deep-Experts-question-What-happens-to-dependent-on-I-485-if-primary-acquires-USC
I tend to agree with BigJoe's assessment and discussed with my attorney at length on this
This is no big mystery - file for your N-400, and after getting a naturalization certificate , file an I-130 and send a cover letter to USCIS asking them to amend the spouse's I-485 as that of USC.
The doubts are natural to have and so is fear. But you gotta move on and make the right call for yourself.
I have filed my N-400 and will update this thread again, after I file my spouse's amended I-485.
NOTE - I am not an attorney so my opinion is not LEGAL advice
. Consider getting professional paid legal advice.
See identical thread I had raised a while ago http://forums.immigration.com/showthread.php?546847-Deep-Experts-question-What-happens-to-dependent-on-I-485-if-primary-acquires-USC
I tend to agree with BigJoe's assessment and discussed with my attorney at length on this
This is no big mystery - file for your N-400, and after getting a naturalization certificate , file an I-130 and send a cover letter to USCIS asking them to amend the spouse's I-485 as that of USC.
The doubts are natural to have and so is fear. But you gotta move on and make the right call for yourself.
I have filed my N-400 and will update this thread again, after I file my spouse's amended I-485.
NOTE - I am not an attorney so my opinion is not LEGAL advice
. Consider getting professional paid legal advice.
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so your attorney was absolutely sure that you don't need to file a new I485 along with the I130 (to mitigate the risk of old I485/EAD/AP denial)?
Jackolantern
Registered Users (C)
You mean interfile the old employment-based I-485 to connect it to the new family based petition (I-130)?
That won't work if USCIS considers the I-485 to be invalidated by the naturalization of the primary EB applicant. At the time of making the interfile request, the beneficiary must still be eligible for the prior immigration category under which their AOS was pending, and also eligible for the newly requested classification. Naturalization would create eligibility as an immediate relative, but would simultaneously destroy eligibility as an EB derivative (if USCIS is still maintaining the position that the naturalization of the primary terminates the derivative process), which would lead to USCIS denying the I-485 and the interfile request.
Identical Situation
I have already filed my N400 Application. Gave my Interview yesterday. Still waiting on approval and Qath date.
My spouse status is still pending for GC ( EB derivative ) BUT I did file a I-130 under F2A back in August 2010 (Current PD 05/08/10) and has been approved but waiting on priority date. What would be my best option. File a new I-485 based on F2A ? Will it be upgraded to spouse of a Naturalized Citizen? Should I send a letter to amend I-485 filed based on Employment(EB3).
More then confused.....need some good advice
(My situation is identical to yours - I got my GC in July 2007 and filed for my wife in 2007. EB3 India)
See identical thread I had raised a while ago http://forums.immigration.com/showthread.php?546847-Deep-Experts-question-What-happens-to-dependent-on-I-485-if-primary-acquires-USC
I tend to agree with BigJoe's assessment and discussed with my attorney at length on this
This is no big mystery - file for your N-400, and after getting a naturalization certificate , file an I-130 and send a cover letter to USCIS asking them to amend the spouse's I-485 as that of USC.
The doubts are natural to have and so is fear. But you gotta move on and make the right call for yourself.
I have filed my N-400 and will update this thread again, after I file my spouse's amended I-485.
NOTE - I am not an attorney so my opinion is not LEGAL advice
I have already filed my N400 Application. Gave my Interview yesterday. Still waiting on approval and Qath date.
My spouse status is still pending for GC ( EB derivative ) BUT I did file a I-130 under F2A back in August 2010 (Current PD 05/08/10) and has been approved but waiting on priority date. What would be my best option. File a new I-485 based on F2A ? Will it be upgraded to spouse of a Naturalized Citizen? Should I send a letter to amend I-485 filed based on Employment(EB3).
More then confused.....need some good advice
Jackolantern
Registered Users (C)
Your spouse can't file an I-485 based on the I-130 until the PD is current or you become a citizen.
If you become a citizen while the I-485 is still pending, that makes the old derivative I-485 potentially deniable, so you should file a new I-485 which will treated as immediate relative (spouse of US citizen).
485_spouse
Registered Users (C)
Spouse (I-485) interview 3 days after me
In my case my N-400 interview is on 11th Oct and my wife is scheduled for 15th.
Should we prepare documents from family 485 POV or EB POV?
485_spouse
In my case my N-400 interview is on 11th Oct and my wife is scheduled for 15th.
Should we prepare documents from family 485 POV or EB POV?
485_spouse
Jackolantern
Registered Users (C)
Your wife is scheduled for what on the 15th? N-400 interview? Or I-485 interview? Something else? Do you have children with a pending derivative I-485?
485_spouse
Registered Users (C)
infopass tomorrow
Sorry for not replying earlier. As soon as I filed my N-400 my wife's 485 was transferred to NBC from there to our local field office. Her interview is for 485.we have one child, she is US citizen.
I did talk to an attorney. As per him,1. I should delay my N-400 interview. 2. If that is not possible I should delay the oath ceremony.
I have an infopass appointment at the local office tomorrow morning. Lets see if they are willing to reschedule the interview!
My big concern is how to prepare my wife for her interview. Is USCIS treating it as EB based or marriage based? Or they just want to make sure we are legitimate couple?
I forgot to add, I changed employers one year after getting my GC in 2008. F
Sorry for not replying earlier. As soon as I filed my N-400 my wife's 485 was transferred to NBC from there to our local field office. Her interview is for 485.we have one child, she is US citizen.
I did talk to an attorney. As per him,1. I should delay my N-400 interview. 2. If that is not possible I should delay the oath ceremony.
I have an infopass appointment at the local office tomorrow morning. Lets see if they are willing to reschedule the interview!
My big concern is how to prepare my wife for her interview. Is USCIS treating it as EB based or marriage based? Or they just want to make sure we are legitimate couple?
I forgot to add, I changed employers one year after getting my GC in 2008. F
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Jackolantern
Registered Users (C)
Don't delay the interview. That has a higher risk of your case falling into a "black hole" than the delaying the oath. If you're going to delay something, delay the oath. And it might turn out that it's not necessary to delay the oath anyway -- they'll probably approve her I-485 within 2-3 weeks after her interview, if the priority date is current.
Her I-485 is a derivative to your EB case, right? They'll probably just ask her a few questions about you and your job, and check if she's still married (she should bring the marriage certificate), and the interview should be less than 10 minutes.
However, if you filed I-130 for her and her I-485 is marriage-based, the interview will be longer and more intense and you will need to be there.
485_spouse
Registered Users (C)
Thanks Jack. Yes my wife case is EB3 (India)-derivative. If the PD (ours Nov 2002) was current It would have been a simple case.Current PD is Oct15 th2002.It will be at-least 2-3 months before her PD is current. I'm inclined to take the interview and delay the oath. However how long can I delay the oath ceremony? 3 months, an year?
Should I go with her for her 485 interview?
485_spouse
Jackolantern
Registered Users (C)
At the interview you can ask for the oath to be after a certain date. Asking for a date at least 2-3 months in the future should be accommodated without a problem. They might not be ready to give you an oath date on the spot, but you're just asking for the oath date to be after xx/xx/2012 whenever they decide to give you a date.
Then after that, once they give you an oath date, you can request a reschedule. That gives you at least another month, maybe 2 months. I know you can request a reschedule twice; not so sure for 3 or more (after some point they'll deem your case abandoned, you can't just keep rescheduling forever). So with the initial delay (requested at the interview) plus 2 reschedules you should be able to stretch it to at least 5 months total delay.
Yes, that would help since you are the primary EB applicant and they might ask her questions about your case that she cannot easily answer (although I don't expect them to do so).
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485_spouse
Registered Users (C)
Update: I had my N-400 interview yesterday. It went OK for most part. I have been recommended for approval and come to know the oath date later. IO ignored request for a later oath date. However she agreed that USCIS will try to schedule it at my local court house which is only schduled 4 times an year. So I have atleast 1.5 months.
Bad news, PD only moved to 22nd Oct 2002. Our is Nov 2002!!
Nov 2012 VB
Bad news, PD only moved to 22nd Oct 2002. Our is Nov 2002!!
Nov 2012 VB
485_spouse
Registered Users (C)
Update after wife's I-485 interview
My wife had her I-485 interview yesterday. IO was polite and professional. She started with putting us under 'oath' and routine questions. She herself made copies of passport, my GC etc. ,although we had copies with us.
She also had the information about my citizenship interview status. She basically confirmed our concern that my wife's I-485 will be denied if I become a citizen. We would need to file a new I-130, I-485, I-765 and I-131 after that. She said if we do that make sure 'my wife do not travel on old AP (i.e. tied to my I-140)'. ONly travel when you have the new AP or get your GC.
She was very supportive and suggested delaying my 'oath' date. We were more than happy to have that option, she is going to check with her supervisor and will inform us via a letter.
Over all a good expereince! I hope this information would be helpful to other in similar situation.
My wife had her I-485 interview yesterday. IO was polite and professional. She started with putting us under 'oath' and routine questions. She herself made copies of passport, my GC etc. ,although we had copies with us.
She also had the information about my citizenship interview status. She basically confirmed our concern that my wife's I-485 will be denied if I become a citizen. We would need to file a new I-130, I-485, I-765 and I-131 after that. She said if we do that make sure 'my wife do not travel on old AP (i.e. tied to my I-140)'. ONly travel when you have the new AP or get your GC.
She was very supportive and suggested delaying my 'oath' date. We were more than happy to have that option, she is going to check with her supervisor and will inform us via a letter.
Over all a good expereince! I hope this information would be helpful to other in similar situation.
Jackolantern
Registered Users (C)
So it looks like you'll have to request a delay of the oath if the next visa bulletin doesn't show a big enough movement. Unless USCIS delays your oath on their own by giving you an oath date far into the future or leaving your case pending for a long time.
485_spouse
Registered Users (C)
I'm hoping not after the next visa bulletin. She was going to check if oath can be delayed till January 2013.
I'm hoping that her supervisor approves.