Primarily applicant becomes a Citizen while Wife's derivative I485 is pending

[adapaavigala]

Hello Gurus, I became an US Citizen recently while my wife's I485 is still pending. I am coming to learn her 485 can be denied since I am a citizen now. Obviously I did not do my homework before I applied my N400. She is on EB3 with a PD of Feb'2003, it may be a while before her case might come up. My questions are,

1. I consulted an attorney and appears her case is techically invalid right now. Can she be denied immediately or do we have some time to get the I130 and a new 485 filed? The lawyer said its unlikely they may deny right away, but wanted to see if you have seen such cases. She is working on EAD and so want to do whatever I can not to impact her employment.
2. Since she has a 485 already, does it cause any issues if I file a new one under family based?
3. I am familiar with immigration forms and procedures to some extent. But is this case considered complex enough to have an attorney file for us? Its costing a lot (anywhere from 3K to 5K) for a reputed law firm. But I am somewhat unclear when it comes to question like a) her current status b) has a petition be filed before etc. I dont want to inadverantly say anything and trigger them to pull her existing 485..Ofcourse they will come to know when I give her A#, but atleast dont want to bring up anything myself?

Appreciate your insights and help..Thanks

 

[Jackolantern]

You'll need to file a new I-130 for her plus I-485. No need for an attorney.

They probably won't deny her old I-485 immediately, it should take some months for them to make the connection and issue the denial. Possibly years given that the PD is not becoming current anytime soon.

You might be worried that filing the new I-485 will result in them denying the old one faster, but that alternative of doing nothing is worse. At least if you have a new I-485 filed before the denial, she will not go out of status, and her new EAD may be approved before the old I-485 is denied.

 

[adapaavigala]

Thanks for your response. I have started preparing the documents and running in to few questions.

1. I130 PartB Question 14 - For the last arrival status should I indicate "Advance Parole" and expiry as 'N/A'? The exipty date on I94 was for a year and it has already passed
2. I130 PardD - Question2 - Have you ever before filed a Petition for this or any other Alien? - Is this only asking for any I130's I have filed in the past or does it also include my original employment based petition for which she was a derivative?
3. I485 Part3 - It asks for Non Immigrant Visa information. She came on H4 and it has expired long back. She has been on AOS for several years now.. What do we provide here? Also what do we provide as a supporting document with Non Immigrant visa?
4. I am filing a I765. She already has a valid EAD till year end, would they issue a new one? Also should I provide the previous EAD information from the old I485 or leave it for them to figure?

Sorry for numerous questions..I am trying to find posts with similar experice and couldnt find answers to these. Any help would be appreciated. I am planning to consult an attorney as well just to get his opinion, is there anything I should make sure I clarify with him?

Thanks

 

[Jackolantern]

1. Yes write Advance Parole. Write the actual expiration date; it doesn't matter that it has expired, given that she had a pending AOS and is married to a US citizen.

2. It only includes petitions filed by you. Your employment-based petition was not filed by you, it was filed by your employer, and doesn't count for this purpose.

3. For that part with nonimmigrant visa information, they're asking about the last entry to the US. She did not use a nonimmigrant visa for her last entry, so leave the visa information blank. But make sure to write "Advance Parole" right above that where it asks "In what status did you last enter?", and it would also be a good idea to include a copy of the H4 visa she used before obtaining Advance Parole, just to make it easier for them to tie together her chain of different statuses.

4. Yes, they will issue a new EAD for the new I-485. It is very important to apply for a new one because the old one could be canceled at any random time due to your naturalization.
For the question "Have you ever before applied for employment authorization from USCIS?" she should answer yes and attach an explanation with the old (existing) EAD information and mention that it was for a separate employment-based I-485. But for the first question on page 1 select "Permission to accept employment", not renewal, because this is the first EAD for this particular case.