How long does I-485 approval take after I-130 has been approved?

A

aaifor

Registered Users (C)
Hello friends,
I had filed an I-485 for my wife over 5 years ago when my I-485 was pending in EB3 category. I received my Green Card in July 2007 while my spouse's case (EB3 India) was stuck in retrogression.

USCIS had interviewed my wife and me last year (2012) for her I-485 at the USCIS San Jose office. They could not approve the I-485 because the EB3 date for India was not (and still is not) current.

Anyways, during this time, I became a US Citizen. In January 2013 my attorney filed an I-130 for my wife and requested USCIS to port the pending I-485 for my wife from EB3 dependent to that of a spouse of a USC category( in FB)

The I-130 got approved a few weeks ago.

When can we expect the I-485 to be approved?

Thanks,
aaifor
 
That I-485 won't be approved. You'll need to file a new I-485 based on the I-130.

Once you became a US citizen, the derivative I-485 became invalidated (although USCIS might not have denied the I-485 yet). To interfile an I-485 from one petition to another, the beneficiary must be eligible for approval based on both the old and new petitions, at the time the request is made. Your naturalization made her ineligible to be an EB derivative, so she wasn't eligible for both, and therefore wasn't eligible to interfile the I-485.

Some other cases where the EB derivative I-485 was denied due to the naturalization of the primary:
http://forums.immigration.com/showthread.php?554774&p=2618704#post2618704
and http://forums.immigration.com/showthread.php?297247-My-daughter-s-I-485-got-denied
 
Jackolantern said:
That I-485 won't be approved. You'll need to file a new I-485 based on the I-130.

Once you became a US citizen, the derivative I-485 became invalidated (although USCIS might not have denied the I-485 yet). To interfile an I-485 from one petition to another, the beneficiary must be eligible for approval based on both the old and new petitions, at the time the request is made. Your naturalization made her ineligible to be an EB derivative, so she wasn't eligible for both, and therefore wasn't eligible to interfile the I-485.

Some other cases where the EB derivative I-485 was denied due to the naturalization of the primary:
http://forums.immigration.com/showthread.php?554774&p=2618704#post2618704
and http://forums.immigration.com/showthread.php?297247-My-daughter-s-I-485-got-denied
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In both the cases the benefactor did not file an I-130, therefore automatic porting to IR-1 is not possible.

Incidentally I had posted a query similar to the threads you quote, a long while ago. http://forums.immigration.com/showthread.php?546847-Deep-Experts-question-What-happens-to-dependent-on-I-485-if-primary-acquires-USC

Big Joe and you had disagreed whether a fresh I-485 was required.

My attorney advised me NOT to file another I-485 since their office requested USCIS to port the pending EB-3 derivative I-485 to that of IR-1.

Now that the I-130 has been approved, we will see what USCIS does, and I will update this thread with the outcomes.

Still appreciate your advise and service to all here :)
 
aaifor said:
In both the cases the benefactor did not file an I-130, therefore automatic porting to IR-1 is not possible.
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True, they had nothing to port to. But because porting requires being eligible under both the old and new categories at the time the request is made, they still wouldn't have been able to port anyway due to becoming ineligible under the original EB petition.

Now that the I-130 has been approved, we will see what USCIS does, and I will update this thread with the outcomes.
Click to expand...

Even if your wife doesn't proactively file a new I-485, it's still important to be prepared to file a new I-485 ASAP in case USCIS denies the original I-485. That includes having her complete the I-693 medical exam (it can be done as much as 12 months in advance of filing the I-485), so the results will be in her hand if she needs to quickly file a new I-485.

If she's working with EAD, it's a high-risk strategy to avoid filing a new I-485. Denial of her old I-485 would mess with her eligibility to work and possibly make her lose her job.
 
I-485 pending; I-130 approved

Dear friends,

Thank you aaifor. I am sailing on the same boat as your wife; It's almost 3 months after my wife I-130 was approved and 3 months now I requested to move I-485 to relative alien (FB). My case is in TSC and still waiting. Hopefully it will be current next month and will be approved, is your wife's approved yet?

Thanks


aaifor said:
Thank you Jackolantern.

My wife does not work so no EAD worries.
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moola said:
Dear friends,

Thank you aaifor. I am sailing on the same boat as your wife; It's almost 3 months after my wife I-130 was approved and 3 months now I requested to move I-485 to relative alien (FB). My case is in TSC and still waiting. Hopefully it will be current next month and will be approved, is your wife's approved yet?

Thanks
Click to expand...
No moola. Our I-485 is not approved yet. In fact the only update to the I-485 is change of location (I guess this is internal USCIS, shifting from one location to another) - we did not get any paperwork.

How about your case? Any movement?
 
I 485 denied

aaifor said:
No moola. Our I-485 is not approved yet. In fact the only update to the I-485 is change of location (I guess this is internal USCIS, shifting from one location to another) - we did not get any paperwork.

How about your case? Any movement?
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Guys I think here's something that may help you. My lawyer received this email from USCIS person when he emailed them saying that my 485 was denied by error. I130 was approved in May (2013). Received an email saying that case status in "Initial Review" on July 24th. Received another email on July 25th (damn July 25th, last year my 2 year old was diagnosed autistic on the same day), saying that my 485 was denied. My lawyer was very convinced that the 485 was denied on error. He was in touch with AILA and I guess he also contacted the USICS baltimore.

According to the information you have provided, and after thorough review, your client’s Form I-485 was not denied in error.

It appears that Mr. S filed to adjust his status through an approved Form I-140 in 2004, subsequently his status was adjusted to that of a permanent resident on September 5, 2007. His spouse, Mrs. N, filed along with her husband in 2004, using her husband’s approved Form I-140 as the basis of her derivative adjustment. Unfortunately, her Form I-485 remained pending after her husband’s case was approved. Mr. S ultimately naturalized in an Oath Ceremony on December 7, 2012. Mrs. N’s Form I-485, based on the approved Form I-140 from her husband, remained pending.



Mr.S then filed Form I-130 on his wife’s behalf, now classifying her as the spouse of a United States Citizen, an immediate relative. The petition was approved on May 28, 2013.



Mrs. N’s Form I-485 was filed on September 28, 2004, based on being the spouse of an E36, which would classify her as an E39. When Mr. S became a United States citizen his wife was no longer eligible for the preference category, E39. Therefore, Mrs. N was not eligible for adjust her status under the I-485 that was filed on September 28, 2004. Unfortunately, according to USCIS regulations we are unable to change the filing status of an I-485 when a petition is approved after the filing date of that I-485. It was, therefore, appropriate for USCIS to deny your client’s Form I-485 filed on September 28, 2004 as she had no basis for adjustment, since her spouse had become a United States Citizen.

Your client may re-file the Form I-485, based on her approved Form I-130. As it appears that she is eligible at this time.

I hope this information was helpful. If you have any further questions please respond to this email.

And by the way, I am from India.

Also, I have one question. We are now reapplying for 485 (phew this is the third time, I just want to get over with this thing). When I found a lump on my neck in dec '11 I got a biopsy done and my physician advised me to see department of infectious diseases. They have done a TB test and it came out more than 5mm diameter. So they did an xray and it came out negative for TB. However, they went ahead and put me on a 6 month course from oct '12 to apr'13 (sheeesh, longest 6 month period in my life). Now, my question is will this have any effect on my 485 approval? I mean I can get a letter or something from the doctor that treated me, saying that the course was completed. Do I have to have the TB test again? It would be great if anyone of you can answer that!!!
 
njampani said:
Also, I have one question. We are now reapplying for 485 (phew this is the third time, I just want to get over with this thing). When I found a lump on my neck in dec '11 I got a biopsy done and my physician advised me to see department of infectious diseases. They have done a TB test and it came out more than 5mm diameter. So they did an xray and it came out negative for TB. However, they went ahead and put me on a 6 month course from oct '12 to apr'13 (sheeesh, longest 6 month period in my life). Now, my question is will this have any effect on my 485 approval? I mean I can get a letter or something from the doctor that treated me, saying that the course was completed. Do I have to have the TB test again? It would be great if anyone of you can answer that!!!
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You will have to do a new medical with another TB test. Bring records of your recent treatment to show to the doctor, including the fact that your X-ray was negative.
 
OPT Expired filling for GC via Marriage to GC Holder/ Citizen

I need some advise. My OPT will expire 8/19 and I got married to a GC holder 8/3...... He is currently processing his citizenship and did his Biometrics in June waiting on Interview date.... Should we start my GC process now or wait until his citizenship has been approved?
 
neshalindsay said:
I need some advise. My OPT will expire 8/19 and I got married to a GC holder 8/3...... He is currently processing his citizenship and did his Biometrics in June waiting on Interview date.... Should we start my GC process now or wait until his citizenship has been approved?
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Please start a new thread, and clarify whether the 8/19 expiration includes the 60-day grace period at the end of your F-1 status, or whether you have 60 days after 8/19.
 
Jackolantern said:
True, they had nothing to port to. But because porting requires being eligible under both the old and new categories at the time the request is made, they still wouldn't have been able to port anyway due to becoming ineligible under the original EB petition.



Even if your wife doesn't proactively file a new I-485, it's still important to be prepared to file a new I-485 ASAP in case USCIS denies the original I-485. That includes having her complete the I-693 medical exam (it can be done as much as 12 months in advance of filing the I-485), so the results will be in her hand if she needs to quickly file a new I-485.

If she's working with EAD, it's a high-risk strategy to avoid filing a new I-485. Denial of her old I-485 would mess with her eligibility to work and possibly make her lose her job.
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Hi Jackolantern,
I consulted with my attorney. Per them, since we have a pending I-485 with USCIS, we cannot file a new I-485 in the IR category. They said we need to put the A# in the newer I-485, and I don't know why that precludes filing a new I-485 based on an approved I-130

Does this mean that we have to wait until USCIS adjudicates the pending EB based I-485? If so, that may be a long time if the files are being shuffled around for archive due to EB3 India priority dates being not current for our case.

Kindly advise.

Thx.
 
aaifor said:
Hi Jackolantern,
I consulted with my attorney. Per them, since we have a pending I-485 with USCIS, we cannot file a new I-485 in the IR category.
Click to expand...
That's false. Multiple I-485s are allowed for the same person if they're based on different petitioners. There are many cases on the forum like that.

Her existing I-485 is based on your I-140, and if she filed a new I-485 it would be based on the I-130 you filed. Two separate petitions filed by two separate petitioners, so two separate I-485s are allowed.

They said we need to put the A# in the newer I-485, and I don't know why that precludes filing a new I-485 based on an approved I-130
Click to expand...
Yes, she would have to put the same A# on her new I-485, but that doesn't stop the new I-485 from being filed. At some point they may contact her and ask her to choose which I-485 to withdraw, but they won't automatically reject the new I-485 because the old one is pending.

She should go ahead and file the new I-485.
 
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Jackolantern said:
That's false. Multiple I-485s are allowed for the same person if they're based on different petitioners. There are many cases on the forum like that.

Her existing I-485 is based on your I-140, and if she filed a new I-485 it would be based on the I-130 you filed. Two separate petitions filed by two separate petitioners, so two separate I-485s are allowed.


Yes, she would have to put the same A# on her new I-485, but that doesn't stop the new I-485 from being filed. At some point they may contact her and ask her to choose which I-485 to withdraw, but they won't automatically reject the new I-485 because the old one is pending.

She should go ahead and file the new I-485.
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Hi Jackolantern,
Our attorney advises against the filing of a second petition. Her reasoning is

1. USCIS may reject the 2nd AOS filings.
2. USCIS may ask the applicant to withdraw one of the AOS application. Please keep in mind, if the 1st AOS application is withdraw, your spouse has no authorization to stay in the US. If she is not authorized to stay, then she will become an illegal alien… which then may lead to the denial of the 2nd AOS filings.
3. USCIS may deny the 1st AOS application, which may lead to the denial of the 2nd AOS application.
Even if we don't file a new application 3. above may still occur- meaning the current application could be denied (and likely so) even without filing a new I-130 based application. Do we have no re-course except to hope for the current I-485 to be adjudicated to approval?
 
aaifor said:
Even if we don't file a new application 3. above may still occur- meaning the current application could be denied (and likely so) even without filing a new I-130 based application. Do we have no re-course except to hope for the current I-485 to be adjudicated to approval?
Click to expand...

You could proactively withdraw the existing I-485 then immediately file the new one. That avoids any of the above scenarios that your attorney is worried about.

Hoping for the old I-485 to be approved isn't a good option, because even if it's approved, USCIS could cancel the green card or deny her citizenship if they later realize her green card should not have been approved.

But you should consult another attorney for a second opinion. Scenario #1 doesn't make sense, as the existence of a pending I-485 based on a different petitioner is not grounds for denying a new I-485. And for scenario #2 the withdrawal of one I-485 leading to denial of the other doesn't make sense because the other I-485 would prevent your wife from becoming an illegal alien. With other cases of multiple I-485s on the forum, when USCIS asked the individual to withdraw one I-485, the withdrawal led to USCIS quickly approving the other!
 
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"USCIS may deny the 1st AOS application, which may lead to the denial of the 2nd AOS application".

Hello,

In my case, we have applied for a FB I485 (new) based on the approved I130. We have sent in our application on 8/23 and I am now asked to appear for a GC interview on 10/31. My old I485 was denied - that doesn;t mean my new I485 will be denied. Hopefully, we got everything right this time and will be approved. Fingers crossed. I will update on how my interview went.

- njampani
 
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