Refiling a new AOS based on spouse's citizenship while one is already pending

D

dzongrila

Registered Users (C)
This is my history in a nutshell.

My wife had applied for employment based Green Card way back in 2004. She had applied through a lawyer.
I was added as a 'derivitive' during the I-485 filing stage.
She received her green card in Nov of 2004. She got her citizenship this year, while my I 485 is still pending.
Although when I had applied for I 485, I had entered the US with a L2 visa. I have since then been going in and out of the country using Advance Parole. I also have got a EAD card and a job.

Recently I had an interview call at the local INS office where I was told that I'll be better off filing a new AOS since my spouse is now a USC. The lady also advised that I should also submit a withdrawal form to withdraw the current I 485 that is pending for the past 6 years. I am really concerned about it as I work on EAD and my EAD is tied to this pending I 485. My question is do I absolutely need to withdraw the pending I 485? I was planning to wait till I get a new EAD through the new I 485 that I am going to file. Please advise.

As per INS's suggestion, now I want to speed things up by filing a I 130 and another I 485 simultaneously.
The questions in I 485 are very confusing. Should I try to do this myself or just pay a lawyer ?

I am confused over the following questions:

I485 Part 1:
Current USCIS Status ?
Should I say AOS Pending ?

I485 Part 2:
should I check h(Other) and explain that I am filing with a I 130 or should it be a?

I485 Part 3:

Were you inspected by a US immigration officer ?
Non immigrant Visa number ?
Consulate where visa was issued ?

then the most important
have you ever applied for permanent residence status in the US ?

I haven't used a visa since 2004 as I've been working on EAD and use AP to travel abroad. So what should I answer here? For the last question, I believe I've to obviously say 'Yes'. Is INS then going to check that I already have got a pending I 485 that hasn't been withdrawn yet. Will it cause any problem?

Thanks for any and all help.

/D
 
She is a citizen now, so your derivative I-485 will eventually be denied. You need to file I-130 and I-485 based on marriage, as your existing I-485 is really useless (unless the appeals are successful for the cases where the primary applicant became a citizen while the derivative was still pending). After you get the I-485, withdraw the old I-485 (or you can choose to leave it pending until the marriage-based interview).
 
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dzongrila said:
I485 Part 1:
Current USCIS Status ?
Should I say AOS Pending ?
Click to expand...
Write Parolee or Advace Parole.

I485 Part 2:
should I check h(Other) and explain that I am filing with a I 130 or should it be a?
Click to expand...
You're filing based on marriage to a USC, so choose (a).

I485 Part 3:

Were you inspected by a US immigration officer ?
Non immigrant Visa number ?
Consulate where visa was issued ?

then the most important
have you ever applied for permanent residence status in the US ?
Click to expand...
Yes, you were inspected. Visa number and consulate = N/A.

Is INS then going to check that I already have got a pending I 485 that hasn't been withdrawn yet. Will it cause any problem?
Click to expand...
Whether you withdraw it or not, you still have to answer YES that you have applied for permanent residence before. It won't cause a problem, other than them possibly saying you should withdraw the old one.
 
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Thanks Jackolantern. So if that's the case, then under what circumstances 'interfiling' is possible? I came across many posts where EB 485 was pending and the person got married to a US Citizen and then filed for I 130 and interfiled it with approved I 130. Is this different than my case where my wife was not a GC holder or US Citizen when my I 485 was filed?

If I don't withdraw my current I 485 (the lady at my local USCIS office gave me a withdrawal form), can I keep my current EAD which is valid till June of 2011? Or will it get canceled based on the fact that I am going to use the same A# on the new application?

I've also recently filed for I 131 renewal. If I concurrently file I 130 & I 485 (along with I 864, I 693, 325 etc.) do I need to also file for a fresh I 765 and I 131 or the current ones will still be valid?
 
Interfiling is doubly risky in your case. First, your existing I-485 is essentially dead because of your wife's naturalization. Second, interfiling from an employment-based to family-based case is a hit-and-miss situation; for some people it works, for others USCIS rejects the interfiling and tells them to file a new I-485.

If I don't withdraw my current I 485 (the lady at my local USCIS office gave me a withdrawal form), can I keep my current EAD which is valid till June of 2011? Or will it get canceled based on the fact that I am going to use the same A# on the new application?
Click to expand...
It remains valid until it expires, unless USCIS explicitly cancels it. It may get canceled as a result of USCIS denying your existing I-485 or you withdrawing the I-485. So don't withdraw the old I-485 until you get the new EAD.

I've also recently filed for I 131 renewal. If I concurrently file I 130 & I 485 (along with I 864, I 693, 325 etc.) do I need to also file for a fresh I 765 and I 131 or the current ones will still be valid?
Click to expand...
File new I-765 and I-131 to be safe. Since summer 2007, the cost of I-765 and I-131 (including renewals) are built into the I-485 fee.
 
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What you are saying makes lot of sense, but I am not sure about the current I 485 being already 'dead' due to my wife's naturalization. As I have mentioned, I had an interview at the local USCIS office where I went with my wife. They were aware that my wife is a citizen and they suggested that I'll be 'better off' by starting a new AOS process rather than banking on the current one as the priority date is 2001. They didn't say that my pending 485 is 'dead' due to my wife's naturalization. But then, I don't trust the people sitting there to know all the answers. Anyway, I've taken another appointment with them for tomorrow and I am planning to ask them these questions. Let's see what happens.
 
dzongrila said:
What you are saying makes lot of sense, but I am not sure about the current I 485 being already 'dead' due to my wife's naturalization.
Click to expand...
If they are going to be consistent regarding prior denials where the primary person naturalized while the derivative's I-485 was pending, it means they will ultimately deny your I-485 too. So while your I-485 case is not officially dead, because they have not officially denied it, consider it to be in an irreversible coma with terminal cancer. It is just a matter of time.

As I have mentioned, I had an interview at the local USCIS office where I went with my wife. They were aware that my wife is a citizen and they suggested that I'll be 'better off' by starting a new AOS process rather than banking on the current one as the priority date is 2001. They didn't say that my pending 485 is 'dead' due to my wife's naturalization. But then, I don't trust the people sitting there to know all the answers.
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Having the derivative pending so long that the primary is able to naturalize before the derivative's I-485 approval is rare, so unless they're ready and willing to approve your existing I-485 immediately, you cannot trust what they say on this obscure scenario. Attempting to pursue the GC based on this old shaky I-485, with or without interfiling, would be inviting unnecessary risk and complexity which can easily be avoided by filing another I-485.
 
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Thanks once again for replying. I've got another question for you. If I decide to file a fresh 485, should I submit I-130 and I-485 along with all the other forms concurrently or should my wife first file I-130 and once it's approved, then I can file I-485? Since my wife is a citizen, I-485 processing time should be current for me now. I-130 should take about 5-6 months. So instead of filing concurrently and thus confusing USCIS with another I-485 (and the EAD and AP), I can use the 5-6 months just to get the I-130 approval. That way there is less chance of my EAD getting canceled. Frankly speaking, at this point, I am more concerned about keeping a valid EAD so that I can continue to work. What's your opinion?
 
Submit them concurrently. You need the marriage-based I-485 to be filed ASAP, because your other I-485 can be denied at any minute, leading to cancellation of your EAD. Worse yet is if they initiate removal proceedings after the I-485 denial before you submit the new I-485. Then you'll be in a big hell hole.
 
One more question. Someone was telling me that even the new 485 will go through the same process like FBI name check etc. and since my current one got delayed initially due to FBI name check, the new one too will have the same issue. Is this true? I am hopeful that during my lifetime, I'll be able to witness some immigration reforms !! or may be that will just remain a dream.
 
dzongrila said:
One more question. Someone was telling me that even the new 485 will go through the same process like FBI name check etc. and since my current one got delayed initially due to FBI name check, the new one too will have the same issue. Is this true?
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No. "Stuck in name check" usually is nothing more than somebody at the FBI started working on your case and then put it aside and forgot about it, not that they're constantly working on it.

Whenever somebody files WOM, somehow they find a way to get it done quickly. If it was some kind of an enormous lengthy task, they wouldn't suddenly be able to do it quickly just because of a WOM lawsuit.

And in other cases, sometimes USCIS tells you the delay is due to name check when it's not true. The name check may have been done and the FBI sent the results to USCIS, but then USCIS didn't update your file to reflect that. Or the delay could be for an entirely different reason.

The name check for your new I-485 will likely be assigned to somebody else, who hopefully won't put it on the back burner.
 
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I have a similar case

I have an identical case as dzongrila. I thought I was the only one with such a rare case.
In my case, the only difference is that my wife is derivative and I was the primary.
I have gone on to become US citizen while my wife's case is stuck in retrogression.
I am surpirsed by reading this thread that derivative's case will be denied if the primary applicant becomes US citizen.
Can you guys point to some other thread or ariticle where denial in such scenario took place before?
 
grg2005 said:
I am surpirsed by reading this thread that derivative's case will be denied if the primary applicant becomes US citizen.
Can you guys point to some other thread or ariticle where denial in such scenario took place before?
Click to expand...
http://forums.immigration.com/showthread.php?297247-My-daughter-s-I-485-got-denied

http://forums.immigration.com/showthread.php?305740-Urgent-help-on-485-denial&p=2121348

You can also add to this other "master" thread which references both of the above: http://forums.immigration.com/showt...child-s-derivative-I-485-when-you-naturalized
 
dzongrila - any updates from your side based on your new appt with USCIS? Are you able to confirm if this is really true that derivative's 485 can be denied due to primary becoming US citizen?
 
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