I-485 AOS issue...

H

hvmedhaj

Registered Users (C)
Hi,

Here are the facts of my case. I am derivative beneficiary under EB-3 category. My date of birth is May 4th, 1987.
The priority date that I retained through my dads application is March 2003.

Feb 2004 -> Dad filed I-485, I-140 for himself and my mom. He was not able to file i-485 for me then because my H4 visa was denied when I tried renewing it. Our plan was for me to come to US and apply for I-485 while I am here, instead of consular processing.

October 2004 -> I-140 approved.

Jan 2005 -> Priority dates moved back to 1999 (retrogressed)

June 2007 -> priority dates moved to June 2003 and July 2007, dates were current.

June 5, 2007 -> parents GC was approved

June 8, 2007 -> Filed 485, EAD,AP for myself (dependent son) while I was here in USA under H4 visa. This is the receipt date. We sent the application a week earlier.

Since then, I have been working in the US with EAD and current status is AOS - I-485 pending.

My parents naturalized last week. When we asked our attorney before this, he repeatedly said there wont be any problem for the derivative upon parents naturalization. So did the immigration officer before my parents took the oath.

We have heard some really bad news from some lawyers while some others don't agree to the below conclusion and I really need your help on this.

Since my parents naturalized while my application is still pending, they will eventually DENY MY I-485 based on the following law as presented by one of the attorneys:

9 FAM 40.1 N7.2-4 Effect of Principal Alien's Naturalization on Derivative Status

(CT:VISA-1000; 09-03-2008)

A “following to join” derivative must immigrate to the United States prior to any naturalization as a U.S. citizen. If the alien fails to immigrate prior to any naturalization the citizen must file an immediate relative petition for the family members.

9 FAM 42.12 N3.6 Effect of Principal Alien's U.S. Department of State Foreign Affairs Manual Volume 9 - Visas 9 FAM 42.12 Notes Page 5 of 7

Naturalization

(CT:VISA-1142; 02-03-2009)

The lack of a time limit on when a following-to-join derivative may immigrate may result in a case where the principal alien becomes a naturalized citizen. In such a case, the principal alien should file a relative petition for the family member. (See 22 CFR 42.21(a) and 9 FAM 42.21 N4.)

However, few attorneys think this case does not apply to me because I am not a follow to join but rather a simple AOS. As per the Foreign affairs manual (as told by couple of other lawyers), reason being the following:

FAM is the Foreign Affairs Manual and generally
applies to obtaining visas abroad. The term 'following to join'
applies to derivative applicants coming from abroad (i.e. if you file
an I-130 for your brother, in 10 years the visa becomes available, his
wife and children would be following to join, or you get your
employment based green card and your wife and son are in India and
they are coming as following to join). It is generally prompted from
the filing of an I-824 petition.

As per the CSPA angle, I am pretty positive(and so are few other attorneys) that I am protected as my age is locked at 19years. Above attorneys(who said parents naturalization has no effect on my pending 485) are saying that I am definitely protected under the CSPA law.

I really appreciate any body's input on this matter. Am I really in trouble at this point ? Fortunately (fingers crossed), EB-3 dates are progressing very slowly so I may have some time to seek other options but I really need assistance on this matter. Please help me. If it could possibly be denied, all the money that my parents spent which is about 50K USD will go down the drain :(:(

Thanks a lot,
HVM
 
I would recommend having one of your parents* file I-130 for you ASAP, so if you ever have to leave the US as a result of having your I-485 denied and losing the appeal, by that time you will have made some progress towards being current on the I-130, and thus able to return to the US with a green card in maybe 4 or 5 more years instead of 7 years.

Your parent should select consular processing for Question 22 of the I-130, because if you end up having to pursue a green card through that route you will be almost surely outside the US when the I-130 priority date becomes current.


*preferably the parent who was not the primary EB applicant, because you already have one complex case tied to the primary and it might be best to start clean with the other parent so USCIS doesn't mess things up in all their craziness.
 
The question that I have at this point is Am I considered a follow-to-join applicant ? My understanding is that that applies to the case wherein primary files after his greencard is approved or by consular processing I-824.
Please correct me if I am wrong.

Also, if my other parent(my mom) files I-130 for me, wouldn't that mess up my current application ? As in, what if the immigration officer cross checks and verifies that my dad also naturalized and thus DENY (or don't know what he does while application is still pending) my I-485. I am leaning towards applying I-130 through my mother but I am not sure if that's gonna cause unnecessary issues at this point. unfortunately H1 quota is done for this year. Other obvious option is F1, EB-5 (an expensive option though). Worst thing is I donot have anybody back in India :(:(

Thanks,
hvm



Jackolantern said:
I would recommend having one of your parents* file I-130 for you ASAP, so if you ever have to leave the US as a result of having your I-485 denied and losing the appeal, by that time you will have made some progress towards being current on the I-130, and thus able to return to the US with a green card in maybe 4 or 5 more years instead of 7 years.

Your parent should select consular processing for Question 22 of the I-130, because if you end up having to pursue a green card through that route you will be almost surely outside the US when the I-130 priority date becomes current.


*preferably the parent who was not the primary EB applicant, because you already have one complex case tied to the primary and it might be best to start clean with the other parent so USCIS doesn't mess things up in all their craziness.
Click to expand...
 
hvmedhaj said:
The question that I have at this point is Am I considered a follow-to-join applicant ? My understanding is that that applies to the case wherein primary files after his greencard is approved or by consular processing I-824.
Click to expand...
You filed your I-485 after your parent's GC approval, so it might be considered follow to join. Your situation touches a number of gray areas and it's probably going to take a court case somewhere to settle the interpretations.

Also, if my other parent(my mom) files I-130 for me, wouldn't that mess up my current application ? As in, what if the immigration officer cross checks and verifies that my dad also naturalized and thus DENY (or don't know what he does while application is still pending) my I-485.
Click to expand...

Maybe ... but since your potential denial would be based on your father's naturalization, having him file the I-130 would be more risky than your mother filing it. Your mother's naturalization doesn't affect your eligibility for a dependent EB green card through your father, so I doubt they would cross-check with your father's file until years from now when you either file for AOS based on the I-130 or are about to have your interview at the consulate.

Worst thing is I donot have anybody back in India
Click to expand...
You can pursue other options, like applying for permanent residence in Canada or Australia or the UK using their points system, or studying in Canada while waiting for the I-130 priority date to become current.
 
Last edited by a moderator:
Follow the advice of Jackolantern

As per my understanding with Mr. Rajiv Khanna in my daughter's cases, your I-485 is going to be denied. I wish that I am wrong.

In your best interest, please follow the advice of Jackolantern.
 
Hi sarwarmd,

Could you pl eloberate on your daughters case ? Was it already denied ? What are the other options that you sought ?
Please advice..

thanks

sarwarmd said:
As per my understanding with Mr. Rajiv Khanna in my daughter's cases, your I-485 is going to be denied. I wish that I am wrong.

In your best interest, please follow the advice of Jackolantern.
Click to expand...
 
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