I-130 approved; I-485 port from EB to IR of USC (FB category) - lost somewhere?

[aaifor]

Hi folks,
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. Later, we got notice that San Jose FO had transferred the I-485 to TSC (and i guess because the dates were 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 in May 2013.

Since no action happened on the I-485 - Our attorney opened a Service Request and we got the following response " The National Benefits Center has jurisdiction over the I-130. If you wish to change adjustment from employment based to family based, then they must request the I-485’s be sent to them to be adjudicated. For your and their convenience, I have copied them on this email. They can request the files be transferred and matched with the I-130 ". Apparently the NBC did not request for the I-485 on their own and my lawyer sent them a follow up request last week.

I am afraid this may be getting lost in translation somewhere.

QUESTION: Besides the Service Request - what are our options for follow up? Will my taking an Infopass appointment with San Jose FO help ?

 

[Jackolantern]

The old I-485 can't be ported to the new I-130. Your wife will need to file a new I-485.

To be eligible for interfiling the I-485 from one petition to another, the beneficiary must be legally eligible for the I-485 under both the old and new petitions at the time the porting request is made. But eligibility under the old petition was lost when you became a US citizen, due to an odd quirk in the law (or USCIS interpretation of the law) which terminates the derivative I-485 when the primary becomes a US citizen. There are a few examples of this on the forum; see the links below.

http://forums.immigration.com/showthread.php?554774&p=2618704#post2618704

http://forums.immigration.com/showthread.php?297247-My-daughter-s-I-485-got-denied

 

[aaifor]

Hi Jackolantern,
I think i will have to face however USCIS moves forward and if needed file a newer I-485 as IR of USC

I asked my attorney and she said we cannot file a new I-485 because there is a pending I-485 for the spouse.

nonetheless, the question is - How do we get to an outcome of the previous I-485? This question is about moving that case to a logical closure...one way or the other.

Thank you again for your help.

 

[Jackolantern]

I asked my attorney and she said we cannot file a new I-485 because there is a pending I-485 for the spouse.

That's not true. USCIS allows filing a new I-485 based on a different petitioner when an I-485 is already pending. The old one is EB with your employer as the petitioner, the new one would be FB with you as the petitioner so both can be pending at the same time.

nonetheless, the question is - How do we get to an outcome of the previous I-485? This question is about moving that case to a logical closure...one way or the other.

I don't know if there is anything you can do in the near future. USCIS might not touch that case at all again until the PD is current. It's been pending for over 5 years and collecting dust somewhere. Maybe EAD renewal will cause them to look at the I-485 again and take action, maybe it won't. If you don't want to wait and wait and wait, file a new marriage-based I-485 and forget about the old one.