Should I file seperate I-485 ?

[lxx2003]

HI,

Wondering if anybody can comment on what should I do in this case:

My husband's Labor Certificate priority date is Mar 2005, and the I-140 was approved, and filed I-485 at Jun 2007 (Nebrastka center ) when it was open. But now the priority date is retrogressed back to Apr 2004 , so that his I-485 can not be certified.

My company also applied Labor Certificate whith Priority Date of Oct 2001. But due to various reason, the I-140 for my case was not approved untill Sept 2007.

My attorney said since his case already filed, ask my decision if I want to file mine. HIs attorney said once filed, the priority date is not important anymore, thus mine will be processed after his even though my priority date is much early than his. So we decided not to file mine, instead my attorney suggested to inter-file my I-140 into my husband's I-485 so that can move his priority date ahead. But we filed my I-140 into his case, but my husband's priority date is still Mar 2005.

Now we are in diamma of what to do, can you comment:
1. Should I ask my attorney to file seperate case based on I-140 ? My attorney said, by the time it filed, if DOL see there is A number already, they will request us to withdraw one... which one should be withdrawed? Do you know how long it might take like my case ( Oct 2001 ) if file it now? BTW, is there any expiration of I-140 ?

2. Or should just wait and see. Or maybe do request to replace my husband's case with my priority date? Is this possible at all? Also, my hus's attorney said it doesn't good, or might corrupt the case if we inqury the case with no reason, even with the reason like why my priority date can not be added to my husband's priority date.. I am not sure if it is just an excute not to do extra work, or it is true...

Thanks alot for any input!

 

[fromnaija]

First I don't think it is possible to interfile your I-140 with your husband's I-485. That is not possible since you are a derivative on his application. The cleaner solution would have been for you to file your own I-485 and make him a derivative on that. You could have then asked that your husband's 485 and yours based on his be withdrawn when the second set of 485 is approved.

I think that a 2001 PD is better than a 2005 PD whichever way you slice and dice it. However, I am not an attorney and your lawyer may know better but I have never heard of interfiling a dependent's I-140 into a primary's 485!

The only advantage you as a spouse could confer on your husband's 485 is if you were from a non-retrogressed country whle he is from a retrogressed country. In that it would be possible to claim your country of birth as his country of chargeability.

 

[TheRealCanadian]

HIs attorney said once filed, the priority date is not important anymore, thus mine will be processed after his even though my priority date is much early than his.

That is a sign that your husband needs a competent attorney.

All things being equal, I-485s are processed in order of receipt. But since there are cutoff dates, all things are NOT equal - if the later I-485 has a current PD while an earlier one does not, then the later I-485 will be processed while the earlier one will not.

 

[lxx2003]

fromnaija, thank you very much for the analysis and reply. Just one more question to clarify: I was totally confused with my attorney's comment like if you file two I-485 and refer to another one. It will be requested to withdraw one. I really don't understand when I will be asked to withdraw one. Is this by the time RIGHT before they certify it, or when I submit it then there is no way for me to know which one goes faster? From your ourcomments:
"...You could have then asked that your husband's 485 and yours based on his be withdrawn when the second set of 485 is approved....", looks like I am in control of when to withdraw, I am not sure

The only reason I didn't file mine is: "Do not want to held back the case". Do you think if there is any impact of filing 2 cases for couple? is it common pattern that people use or to avoid it?

Thanks again!

 

[fromnaija]

I have seen instances where couples submitted two sets of I-485. At first I didn't want to alarm you but as TheRealCanadian said, you do need a more competent attorney.