Please help, portability issue with dependent

M

MP08

Registered Users (C)
Hello all, I'm eb3 India PD Jan 2003, 140 approved, 485 pending. Both me and spouse are on EAD from 485s. We recently filed spouse's EB2 NIW. Is it possible to get old PD towards new eb2 140?? In this case, new eb2 applicant is dependent on old eb3 pending 485.....
Will we have to file new 485 with this 140 once dates become current for India??
Any feedback from your experience will be immensely helpful, thanks in advance,
 
MP08 said:
Hello all, I'm eb3 India PD Jan 2003, 140 approved, 485 pending.
Both me and spouse are on EAD from 485s.
We recently filed spouse's EB2 NIW. Is it possible to get old PD towards new eb2 140??
-----------------if EB3 I-140 was approved for A then A can recapture early PD at the time of filing second I-140 and also should write his/her A# on second I-140 form and provide copy of EB3 approval notice. if EB3 was approved for A then B cant recapture the PD as no I-140 was approved for B.
In this case, new eb2 applicant is dependent on old eb3 pending 485.....
Will we have to file new 485 with this 140 once dates become current for India??
-----------------------------file New I-485 so that no confusion and write the A# on second I-485. Or if I-485 is still pending one can also make the derivative I-485 as primary but you need good lawyer to do that. If I am in your situation I will file second I-485
Any feedback from your experience will be immensely helpful, thanks in advance,
Click to expand...

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If you are the primary on the EB3 petition, and your spouse is the primary on the EB2, you cannot port the priority date. The same person would have to be the primary on both in order for the priority date porting to be allowed.
 
Thanks both of you. It seems there is pretty clear consensus on this issue. However I do know someone who got their eb2 app approved because spouse had an old abandoned app where PD was earlier than the cut off dates. In their case that was the only way their new app could have been approved as their new eb2 had PD of late 2006
 
Either that one was approved in error, or there are details of the case that you don't know about, like cross-chargeability or the spouse using AC21 to revive the old I-485 as the primary applicant.
 
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