Grandfathering in under 245i - immediate lawyer advice needed please!

Z

zstar

Registered Users (C)
My father in law became perm res. In 1993
He filed for my wife as unmarried daughter/under 21 in 1994
I-140 was approved
He never filed for I-485 not knowing that it had to be filed.
We got married 1998 – and everyone said that petition is dead as she is married now and over 21
My f-in-l became us citizen in 2003 and filed for another petition for my wife as married daughter/us citizen/over 21
Petition was approved recently
Last month we received a letter from Ins revoking the initial I-140 approval filed in 1994 and she is married now.
According to 245i we should still be able to grandfather in even it was revoked as it was "approvable when filed,"
We want to file for our 485, including me as an after acquired family and grandfather the old priority date ( 1994).
My lawyer is saying that it will be denied as the 1994 petition was later revoked and he wants to file a letter to HQ instead asking for the revocation to be suspended. Because INS should have change the category to married daughter of US citizen instead of revoking it all together.

My question is, it is very clear that the revocation doesn’t count on family based filing as 245 I supports "approvable when filed," and thus we should be able to grandfather in.
Can I get an expert 2nd opinion on this from someone please?
 
zstar said:
My question is, it is very clear that the revocation doesn’t count on family based filing as 245 I supports "approvable when filed," and thus we should be able to grandfather in. Can I get an expert 2nd opinion on this from someone please?
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I'm not going to claim to be an expert on 245i and Family-Based matters, but here's my thoughts. You should get a second opinion from another attorney.

In order to claim 245i benefits, an alien must have a priority date of April 30th, 2001 or before, and must have been physically present in the United States on December 22nd, 2000. In order for your wife to claim 245i, she needs to get a priority date back in early 2001 or before.

Your wife's old I-130 has a priority date back in 1994, but in order for her to claim that date now the I-130 must remain valid - which it does not, since she is now married. I think your attorney is on the right track trying to get it converted from FB2 to FB3, and that might do the trick.

Why do you need to claim 245i relief, anyways?
 
Because the new I -130 ( married daughter of us citizen)has a priority date of Dec 2004 and we can't file for I-485 yet. And i dont think in that petition I will be covered anyway.
 
zstar said:
Because the new I -130 ( married daughter of us citizen)has a priority date of Dec 2004 and we can't file for I-485 yet. And i dont think in that petition I will be covered anyway.
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Again, why do you need 245i relief? Are you overstaying?

(And yes, you should be covered as a derivative of an FB3 applicant).
 
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