filing I-130 petition to an existing I-485 application in F2A category

[sanjay.nidoni]

We are on H1B. As immediate relative parent of a US citizen, we had filed I-130 and I-485 concurrently along the 14 year old child as derivative beneficiary in May 2023. Both principal beneficiaries , ie. we both parents got I-485 approved on Feb 1st week 2024, however, the child got a notice for evidence asking for the petition as the sibling petition will not cover him. USCIS says derivative beneficiary shall not be applicable for our child.

Now option is that, one of the parent is required to file I-130 for the child in second preference of Alien Relative case.(F2A). We may have to do this online filing.

Question 1: In response to the request for evidence for current I-485 application, can I provide the receipt notice of the new I-130 petition by the parent ? Can this I-485 itself be still valid? Can I request USCIS to use this I-485 filing with new category F2A instead?
OR do we have to wait until I-130 is approved ( which may take 5 months) to file a new I-485?

Question 2: Do I need to cover him under a visa type, as current H4 dependent visa might become invalid, since the H1B status change to GC with immediate effect. How do we handle this situation? I see some suggestions from the internet such as F1/M1 visa. How much time shall it take to get it approved? Until then is it safe to stay in USA for our child?

 

[newacct]

1. No, I don't think you can change an old I-485 to be based a new I-130. The child will need to file a new I-485. The child does not need to wait until the I-130 is approved to file I-485. They need to wait until a month when the date on this chart has passed their priority date (the priority date is the date the I-130 was filed) before they can file I-485. Even if the I-130 is approved, they still cannot file I-485 until the date on the chart passes their priority date. Also, to file I-485 in this category, they need to have maintained status until the date the I-485 is filed, and have never previously been out of status.
2. He is already out of H4 status, since the H1b principal already lost H1b status when they became a permanent resident. Therefore, I-485 is no longer possible for the child. The child will need to do Consular Processing at a US consulate abroad for an immigrant visa. So forget all that was said above about the I-485. When you file the I-130 for the child, you should fill in the consulate abroad where he will apply for an immigrant visa, and NOT fill in the question about the USCIS office in the US where he will do Adjustment of Status. Then wait for the I-130 to be approved, and then wait for NVC and the consulate to contact you to request documents and tell you the next steps. He can go abroad when it's time for the appointment at the consulate. Even if his I-94 expires, he will not accrue unlawful presence because he's under 18, so he will not trigger an unlawful presence ban upon leaving the US. However, I am not sure whether they will initiate removal proceedings after his I-485 is denied or withdrawn. If he is removed, that will trigger a ban. It's generally not possible to apply for Change of Status since he is already out of status; they rarely accept late Change of Status applications, and only if there is a good reason to be late.