dependent as primary on I485

M

MP08

Registered Users (C)
I am EB3 India from June '03 (waiting on pending I485 from July fiasco and currently on EAD/AP). In July 2007, I had applied for my wife as dependent I485 on my EB3 I485.
Sometime late last year (Nov 2012), my wife, had her own I140 approved under EB2 India through her company where she was working on EAD. The A number on her I140 approval was same as on her EAD/AP documents.

Can I be derivative on my wife's I485 which was originally filed with me as primary and her as derivative in July 2007 ?
I recently lost my job, and am concerned about my status. If need be, can we rely on my wife's I485/I140 (where I'm thinking she would be now primary on her I485 as she has her own labor and approved I140)?
This is in effect reverting from primary to secondary and vice versa.

I would highly appreciate info on above matter esp while I be looking for similar employment in this economy.
Regards.
 
If your wife has filed a primary I-485 connected to her own I-140, and her priority date is current, you can file a new I-485 as her derivative. Meanwhile, you can keep your old primary I-485 alive while looking for "same or similar" employment to preserve your AOS eligibility with AC21.

If you find such a job after filing a new I-485, that would give you two active I-485s, one as primary one as derivative, but that is OK. Both can be kept active until you get the green card with the first one that progresses to completion.

If she has her own primary I-485, another option is to transfer (interfile) your old I-485 onto her I-140 as a derivative. But that would leave you without your own separate primary I-485. With you losing your job recently, I'm sure you can appreciate the importance of having multiple options to adjust status in case something goes wrong with one of them, so I doubt you'd want to pursue that option.
 
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Hello Jackolantern. Thank you so much for sharing your views.
In our scenario, we DO NOT have 2 I485s filed (have just 1 I485 from July '07, me as primary and spouse as derivative). So my wife also has only her dependent I485 filed as dates for EB2 India have not been current since she got her I140 approved last year for us to file 2nd I485 with her as primary. But A number on her I140 is same as A number on her I485 receipt notice, so we think that her approved I140 is now part of her I485 (that was filed as dependent I485 in July '07).

In this scenario will she be considered primary on her own I485/I140? (and then can I be considered derivative I485 if required).
 
The A-number is linked to the person, not the application or process, so the number is the same on her I-140 and her derivative I-485, even though those applications are not connected.

You cannot file a derivative I-485 to her I-140 before her own primary I-485 is filed (or she becomes a permanent resident through consular processing of the I-140, if she pursues the CP route instead of I-485). And her I-140 PD must be current in order for you to file a derivative I-485 based on her I-140.
 
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