I 130 approved, I 485 denied and now refiling I 485

[njampani]

My husband 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. I filed along with my husband in 2004, using my husband’s approved Form I-140 as the basis of my derivative adjustment. Unfortunately, my Form I-485 remained pending after my husband’s case was approved. My husband ultimately naturalized in an Oath Ceremony on December 7, 2012. My Form I-485, based on the approved Form I-140 from my husband, remained pending. My husband then filed Form I-130 on my behalf, now classifying me as the spouse of a United States Citizen, an immediate relative. The petition was approved on May 28, 2013. My Form I-485 was filed on September 28, 2004, based on being the spouse of an E36, which would classify me as an E39. When my husband became a United States citizen I was no longer eligible for the preference category, E39. Therefore, I was not eligible to adjust my status under the I-485 that was filed on September 28, 2004. Hence my Form I 485 filed on September 28, 2004 was denied on July 25, 2013 as I had no basis for adjustment, since my husband had become a United States Citizen. Now, my question is that if I re-file the Form I-485, based on my approved Form I-130, what are the chances that my I 485 will be denied (provided that I have submitted all the documentation properly)? I mean, did I ever overstay or anything that would jeopardize my I 485 approval?

 

[Jackolantern]

Unless you have some other status like H1B, you are currently unlawfully present, because your I-485 has been denied. But since you entered legally and your spouse is a US citizen, that will be forgiven and your I-485 will be approved (assuming no other reason for denial such as a criminal record).