Spouse of US Citizen transfering her pending I-485 to get GC

[srkarthi75]

I am going to be US Citizen on Nov 14th.
My wife still got pending I 485 (PD Aug 28, 2007 EB3)
I applied or I 485 before our marriage and did follow to join I 485 for my wife later. Thats why I got my GC and still my wife with pending 485.

My question is it possible to transfer her pending I-485 based on my citizenship status and make use of visa immediately. Or should I need to file I-130 and I-485 freshly for my wife?

 

[nkm-oct23]

You will have to file a I-130 and a new I-485 together since the basis for immigration for your wife has changed from EB derivative to FB imediate relative.

 

[Jackolantern]

Your wife's I-485 will be denied if you become a citizen. Due to an weird anomaly in the law (or USCIS's interpretation of it), they have been denying derivative I-485 cases when the primary becomes a US citizen.

See http://forums.immigration.com/showthread.php?297247-My-daughter-s-I-485-got-denied
and http://forums.immigration.com/showt...till-pending-what-to-do&p=2591821#post2591821

Although it is usually possible to transfer (interfile) a pending EB I-485 to an FB petition, that won't work in this case because that transferability requires the beneficiary to be eligible for adjustment based on both the old and new petitions at the time of the interfile request. But your naturalization would terminate her eligibility under the first petition, so she won't be able to interfile it.

To summarize: File the I-130 and her new I-485 immediately after you naturalize.

 

[srkarthi75]

Called USCIS

Yesterday I called USICS and explained the situation. The agent confirmed that my wifes I 485 will continue with EB derivative even after I get my citizenship on Non 14th. The issue comes if I want to do restart GC process for my wife through FB derivate then I need to withdraw the existing ED derivate and need to refile again. During this time she wont have EAD/ AP and should wait till we she get new EAD/AP based on new filing with FB derivative.Good thing is that she will get GC quickly since there is no quote restriction for FB derivative esp for spouse. Bad thing - thre will be break in employment.

 

[Jackolantern]

Yesterday I called USICS and explained the situation. The agent confirmed that my wifes I 485 will continue with EB derivative even after I get my citizenship on Non 14th.

The interviewer of this other case said otherwise:

She also had the information about my citizenship interview status. She basically confirmed our concern that my wife's I-485 will be denied if I become a citizen.

Be very skeptical of what they tell you on the phone for "what if" scenarios. They are often very wrong, and you can run into big trouble if you rely on what they tell you. The phone people are generally less experienced than those who do the actual interviewing and decision making.

The issue comes if I want to do restart GC process for my wife through FB derivate then I need to withdraw the existing ED derivate and need to refile again.

No, you don't need to withdraw the EB I-485. They allow multiple I-485s pending at the same time for the same person, as long as they're based on different petitions (e.g. one EB the other FB, or two FB filed by different relatives). File the I-130 and new I-485, then she can get the green card based on whichever I-485 progresses to completion first (of course, if they deny the EB I-485 because of your naturalization, that forces her to rely on the new I-485 only).

 

[srkarthi75]

Info Pass

I made info pass appointment for today with local office to discuss about this issue. I will post the detail after the appointment.

 

[sarwarmd]

srkarthi75,
What is the InfoPass update for your case or your InfoPass appointment is still in the future!

I made info pass appointment for today with local office to discuss about this issue. I will post the detail after the appointment.

 

[srkarthi75]

Infopass Update

Went to Infopass apmt.
Explained my case to the officer at local USCIS
Myself and my wife filed 485 separately and I received my GC on 31 Aug 2007 and my wife is still in EAD ( EB3 derivative)
I am going to become citizen on 14th Nov (oath ceremony)
My Question - what will happen for her pending 485.

Response from office:
1. My wife's 485 process will be continuing without interruption. Seh can sue her EAD/ AP till she get GC.
2. She can file a new 485 based on FB derivative. A petitioner can have more then one 485 application in different category ( EB and FB)
3. Which ever 485 gets visa first will be approved and she get GC based on wither esisting EB3 derivative or new FB derivative.
4. Officer explained it like betting on more then one horses in a race.

srkarthi75,
What is the InfoPass update for your case or your InfoPass appointment is still in the future!

 

[sarwarmd]

Went to Infopass apmt.
Explained my case to the officer at local USCIS
Myself and my wife filed 485 separately and I received my GC on 31 Aug 2007 and my wife is still in EAD ( EB3 derivative)
I am going to become citizen on 14th Nov (oath ceremony)
My Question - what will happen for her pending 485.

Response from office:
1. My wife's 485 process will be continuing without interruption. Seh can sue her EAD/ AP till she get GC.
2. She can file a new 485 based on FB derivative. A petitioner can have more then one 485 application in different category ( EB and FB)
3. Which ever 485 gets visa first will be approved and she get GC based on wither esisting EB3 derivative or new FB derivative.
4. Officer explained it like betting on more then one horses in a race.

Thanks for the update. You can not interfile your I-485 because your wife's I-485 status will be in dilemma. You need to file your wife's FB based I-485 on the day you get your citizenship. That way you can ensure that there is one I-485 always safe.

 

[mayflow77]

Similar Situation, Finally waiting to receive GC by mail

Our case was similar,

Primary GC was approved in July 2007, derivative I-485 was pending since 2004 due to retrogression of EB3-india priority dates (485 for Primary and derivative applied on same day).
Primary applied for Citizenship in June 2012(5 yrs after PR), which triggered transfer of derivative EB3 I485 to NBC and an interview on 27th sept 2012 ( a week before Primary Naturalization interview).
Derivative EB3-I485 interview on 09/27/2012 - no decision taken on the case as priority date was not current, case was put on shelf.
Primary same day naturalization interview/oath ceremony on 3rd Oct 2012 - we prepared FB I-130/485/765 documents ready before hand and mailed the documents next day(4th Oct) to USCIS.
FB Interview Date on 11th Dec 2012 : got a verbal approval from IO on the same day.

Received approval emails for FB I-485/I-130/I-1765 on 21st Dec 2012 and case termination email for EB3 I-485.

Finally, waiting for GC to come by mail.


This forum helped us a lot. I take this opportunity to thank you all.


Primary EB3(INDIA):
I-140 AD : 6th May 2004
I-485 RD: 09/22/2004 AD: 20 Jul 2007
N400 - RD/PD -26th Jun 2012
Naturalization Interview/Approval/Oath ceremony - 3rd Oct 2012
Derivative(Spouse) :
EB3- I-485 RD: 09/22/2004
EB3 I-485 Interview : 27th sept 2012 (triggered due to primary N400 application)
FB - 130/485/I765 RD : 5th OCT 2012
FB Interview Date : 11th Dec 2012
FB I-485/I-130/I-1765 approval emails dated: 21st dec 2012
EB3 I-485 terminated email dated :21st dec 2012
FB GC/EAD card production emails: 27th Dec 2012

 

[csgmrt]

mayflow77,
I am planning to submit the i-130/i-485/i-765/i-131 for my spouse whose derivative employment based 485 is pending. I have a citizenship interview later this month. My spouse is also working on EAD. On the 485 form, there is an 'Expires on' field. Can you please let me know what you filled in for this. Is this the I-94 expiration date or since the status is AOS (pending employment 485) should we write N/A.

Also my spouse has valid EAD and AP - expires end of the year, should we need to refile these applications when filing family based I-485.

Thanks

Our case was similar,

Primary GC was approved in July 2007, derivative I-485 was pending since 2004 due to retrogression of EB3-india priority dates (485 for Primary and derivative applied on same day).
Primary applied for Citizenship in June 2012(5 yrs after PR), which triggered transfer of derivative EB3 I485 to NBC and an interview on 27th sept 2012 ( a week before Primary Naturalization interview).
Derivative EB3-I485 interview on 09/27/2012 - no decision taken on the case as priority date was not current, case was put on shelf.
Primary same day naturalization interview/oath ceremony on 3rd Oct 2012 - we prepared FB I-130/485/765 documents ready before hand and mailed the documents next day(4th Oct) to USCIS.
FB Interview Date on 11th Dec 2012 : got a verbal approval from IO on the same day.

Received approval emails for FB I-485/I-130/I-1765 on 21st Dec 2012 and case termination email for EB3 I-485.

Finally, waiting for GC to come by mail.


This forum helped us a lot. I take this opportunity to thank you all.


Primary EB3(INDIA):
I-140 AD : 6th May 2004
I-485 RD: 09/22/2004 AD: 20 Jul 2007
N400 - RD/PD -26th Jun 2012
Naturalization Interview/Approval/Oath ceremony - 3rd Oct 2012
Derivative(Spouse) :
EB3- I-485 RD: 09/22/2004
EB3 I-485 Interview : 27th sept 2012 (triggered due to primary N400 application)
FB - 130/485/I765 RD : 5th OCT 2012
FB Interview Date : 11th Dec 2012
FB I-485/I-130/I-1765 approval emails dated: 21st dec 2012
EB3 I-485 terminated email dated :21st dec 2012
FB GC/EAD card production emails: 27th Dec 2012

 

[Jackolantern]

I am planning to submit the i-130/i-485/i-765/i-131 for my spouse whose derivative employment based 485 is pending.

I assume you know that you need to wait until after your naturalization to file them (except the I-130 which can be filed right now as a GC holder).

Is this the I-94 expiration date or since the status is AOS (pending employment 485) should we write N/A.

Yes you can write N/A.

Also my spouse has valid EAD and AP - expires end of the year, should we need to refile these applications when filing family based I-485.

Refile them, because your naturalization could result in denial of the old derivative I-485, which would jeopardize the existing EAD and AP. Getting a new EAD and AP based on the new I-485 would remove that risk. And there's no extra fee to apply for them.

 

[csgmrt]

Jackolantern, thanks for the response

I am waiting for the naturalization so I can file I-130 and I-485 at the same time.

I assume you know that you need to wait until after your naturalization to file them (except the I-130 which can be filed right now as a GC holder).


Yes you can write N/A.


Refile them, because your naturalization could result in denial of the old derivative I-485, which would jeopardize the existing EAD and AP. Getting a new EAD and AP based on the new I-485 would remove that risk. And there's no extra fee to apply for them.

 

[mayflow77]

mayflow77,
I am planning to submit the i-130/i-485/i-765/i-131 for my spouse whose derivative employment based 485 is pending. I have a citizenship interview later this month. My spouse is also working on EAD. On the 485 form, there is an 'Expires on' field. Can you please let me know what you filled in for this. Is this the I-94 expiration date or since the status is AOS (pending employment 485) should we write N/A.

Thanks

Each case is a bit different. In our case, my spouse did not go out of USA for a long time after last entry into USA on H1-B.
We entered the end date from the spouse's last approved H1-B extension (I-129) and see Letter. i.e. "12/20/2008, See Letter"

Attached letter, explaining valid/legal stay in US (I129 approvals, AP, EAD) from entry into USA till date and attached the copies of all the I129 , EAD's, AP's approvals till date to support the explanation in the Letter.

Also my spouse has valid EAD and AP - expires end of the year, should we need to refile these applications when filing family based I-485.
Thanks

Applied new FB I485, I130, I-765(as EB based EAD was due for renewal) concurrently after primary naturalization. Based on FB I485 receipt notice, I-131(AP) was applied later (can only apply if current AP expires within 120 days). I-131 was approved quickly with in 2-3 weeks.

I think, but may be i am wrong, you can't apply for new I-765(EAD)& I-131 based on FB I485, if current EB based EAD & AP are not due for renewal (irrespective of
category FB or EB ) and you can continue to use current EAD & AP if they are still valid and no decision is taken on EB derivative case.

 

[sarwarmd]

Thanl you srkarthi75..

Went to Infopass apmt.
Explained my case to the officer at local USCIS
Myself and my wife filed 485 separately and I received my GC on 31 Aug 2007 and my wife is still in EAD ( EB3 derivative)
I am going to become citizen on 14th Nov (oath ceremony)
My Question - what will happen for her pending 485.

Response from office:
1. My wife's 485 process will be continuing without interruption. Seh can sue her EAD/ AP till she get GC.
2. She can file a new 485 based on FB derivative. A petitioner can have more then one 485 application in different category ( EB and FB)
3. Which ever 485 gets visa first will be approved and she get GC based on wither esisting EB3 derivative or new FB derivative.
4. Officer explained it like betting on more then one horses in a race.

 

[vellankis]

Mayflower

My case is 100% as yours without any changes, I filed I-130, 485, 765 but got the 765 check returned. So i now understand that we shouldn't file 765 along with a 485 & 130 when we have a EAD and AP that are still valid.

Correct me if i am wrong.

Our case was similar,

Primary GC was approved in July 2007, derivative I-485 was pending since 2004 due to retrogression of EB3-india priority dates (485 for Primary and derivative applied on same day).
Primary applied for Citizenship in June 2012(5 yrs after PR), which triggered transfer of derivative EB3 I485 to NBC and an interview on 27th sept 2012 ( a week before Primary Naturalization interview).
Derivative EB3-I485 interview on 09/27/2012 - no decision taken on the case as priority date was not current, case was put on shelf.
Primary same day naturalization interview/oath ceremony on 3rd Oct 2012 - we prepared FB I-130/485/765 documents ready before hand and mailed the documents next day(4th Oct) to USCIS.
FB Interview Date on 11th Dec 2012 : got a verbal approval from IO on the same day.

Received approval emails for FB I-485/I-130/I-1765 on 21st Dec 2012 and case termination email for EB3 I-485.

Finally, waiting for GC to come by mail.


This forum helped us a lot. I take this opportunity to thank you all.


Primary EB3(INDIA):
I-140 AD : 6th May 2004
I-485 RD: 09/22/2004 AD: 20 Jul 2007
N400 - RD/PD -26th Jun 2012
Naturalization Interview/Approval/Oath ceremony - 3rd Oct 2012
Derivative(Spouse) :
EB3- I-485 RD: 09/22/2004
EB3 I-485 Interview : 27th sept 2012 (triggered due to primary N400 application)
FB - 130/485/I765 RD : 5th OCT 2012
FB Interview Date : 11th Dec 2012
FB I-485/I-130/I-1765 approval emails dated: 21st dec 2012
EB3 I-485 terminated email dated :21st dec 2012
FB GC/EAD card production emails: 27th Dec 2012

 

[Jackolantern]

Mayflower

My case is 100% as yours without any changes, I filed I-130, 485, 765 but got the 765 check returned. So i now understand that we shouldn't file 765 along with a 485 & 130 when we have a EAD and AP that are still valid.

Correct me if i am wrong.

You're wrong, because it's OK to file I-765 for a family-based case when there is an EB-related EAD still valid. The I-765 check was returned because the I-765 has no fee if filed in conjunction with an I-485 which was filed after the summer 2007 fee changes. They will issue a new EAD for the I-765 you filed, but without taking money for it because the cost of it is built into the I-485 fee.

 

[mehuln]

Can you please update the latest on your case

Can you please update the latest on your case to confirm the pending I485 based on i140 is valid after the spouse citizenship?


Can you also please confirm if your wife I 485 is dervative application based on your I 140 approval or she had a different I 140?

-Mehul

 

[mehuln]

Can you please update the latest on your case to confirm the pending I485 based on i140 is valid after the spouse citizenship?


Can you also please confirm if your wife I 485 is dervative application based on your I 140 approval or she had a different I 140?

-Mehul

 

[mehuln]

Can you please update the latest on your case to confirm the pending I485 based on i140 is valid after the spouse citizenship?
Can you also please confirm if your wife I 485 is dervative application based on your I 140 approval or she had a different I 140?

-Mehul

Explained my case to the officer at local USCIS
Myself and my wife filed 485 separately and I received my GC on 31 Aug 2007 and my wife is still in EAD ( EB3 derivative)
I am going to become citizen on 14th Nov (oath ceremony)
My Question - what will happen for her pending 485.

Response from office:
1. My wife's 485 process will be continuing without interruption. Seh can sue her EAD/ AP till she get GC.
2. She can file a new 485 based on FB derivative. A petitioner can have more then one 485 application in different category ( EB and FB)
3. Which ever 485 gets visa first will be approved and she get GC based on wither esisting EB3 derivative or new FB derivative.
4. Officer explained it like betting on more then one horses in a race.[/QUOTE]