upgrade after I-485 filed?

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gracelin

Registered Users (C)
Hi, it's my first post here.

My bf's mother filed I-130 for him in 2000 (F2b). His priority date is current (actually available in April) and he filed I-485 at the end of July. He finished the fingerprint around 8/20. Now his mother becomes a citizen (two days ago). We want to get married and know that the waiting time for spouse of GC is around 5 years, and we are trying to avoid that. So we are thinking some ways for me to get GC at the same time.

My question is:
1. It's my understanding that if we can change his category to Citizen's Adult child, then we can get married, and I can have GC as well. Is that correct?
2. If so, his mother will request the upgrade. Does she need to upgrade twice, from F2b to F1 to F3, or simply request F2b to F1 and we upgrade to F3 when we interview?
3. If this path works, can we marry immediately after the request, or we need to wait the confirmation or approval? And if we marry after the confirmation but before he gets his GC, can I file my I-485 after he gets his GC or I must filed before his I-485 is approved?
4. Does upgrade have any impacts on his case, since he's already filed the I-485?

Any help and suggestions are welcome and appreciated. Thanks!
 
If she filed for him in 2000 then PD is current even for the 3rd category. I'm not positive he has to withdraw the application, but probably withdrawing one, getting married, and then filing for both of you in 3rd category (with his mom's certificate attached) is the way to go. Frankly, I'd STRONGLY recommend to spend some money and get 30 mins consultation with the lawyer ASAP.
 
kittenKat, withdraw probably won't be an option for us. She won't accept filing another I-130 and wait another PD simply for me to have GC at the same time. He plans to graduate next year, so wants GC ASAP too.

Jackolantern, yes, and we are both still legally now under F1 student visa.

Thanks~
 
gracelin said:
kittenKat, withdraw probably won't be an option for us. She won't accept filing another I-130 and wait another PD simply for me to have GC at the same time. He plans to graduate next year, so wants GC ASAP too.
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What do you mean by "wait for another PD"? What country your hubby is from then? The PD now 2001 for the 3rd category, so you should be current if you marry (unless you are from Mexico or Philippines). If you'll wait till he'll get GC and then marry - nothing can be done, you'll have to wait 4-5 years in 2nd category (or until he becomes USC).
 
kittenKat said:
What do you mean by "wait for another PD"? What country your hubby is from then? The PD now 2001 for the 3rd category, so you should be current if you marry (unless you are from Mexico or Philippines). If you'll wait till he'll get GC and then marry - nothing can be done, you'll have to wait 4-5 years in 2nd category (or until he becomes USC).
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I think she means if the I-130 filed for her bf by his mother is withdrawn he loses the PD from year 2000... and I think you are talking about withdrawing 485.
 
gracelin said:
kittenKat, withdraw probably won't be an option for us. She won't accept filing another I-130 and wait another PD simply for me to have GC at the same time. He plans to graduate next year, so wants GC ASAP too.

Jackolantern, yes, and we are both still legally now under F1 student visa.

Thanks~
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Gracelin, Kittenkat meant withdrawing your bf's I-485.

Either way, get the category changed first. Then your bf should be able to add you to his 485 and you will be his derivative beneficiary. If not, he can withdraw and re-file I-485 with you included after the case has been upgraded (or downgraded in this case?) and you two get married.
 
VisaNutz said:
I think she means if the I-130 filed for her bf by his mother is withdrawn he loses the PD from year 2000... and I think you are talking about withdrawing 485.
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You are right. But PD won't be lost if one withdraw it (before it's too late lol!). And I think that's what the OP doesn't understand probably. I did file incorrectly and 2 lawyers said the best way to go is to request a withdraw. It doesn't hurt PD in any way - you just re-file it. :)

P.S. Actually it does hurt financially - you have to pay 2nd time the fee... :(
 
Thanks for you all. I did misunderstand the withdraw - VisaNutz you are so smart :D

We'll request the category change ASAP. So what's the procedure for him to add me to his 485? (I mean, he already filed, so how to add it?) Or, if the withdraw is a must, could you also tell me how to withdraw?

Oh, and sorry to add one more question. His brother's PD is 2005 (also F2b). Will the brother's category be changed automatically if we change my bf's category, or the brother's category will stay as F2b unless she also request the upgrade for the brother?

Thanks!
 
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I think you may be able to add yours 485. Here is the thread about similar situations: http://forums.immigration.com/showthread.php?t=96693

Frankly, I'd recommend to may be schedule INFOPASS and ask the IO what to do exactly. You certainly will have to do it FAST (I mean get married and file).

His mom can send 2 letters to CIS asking to change the category: from F2B to F3 for your future husband, and from F2B to F1 for his brother. I know some people don't even bother to upgrade (as you can just submit the prove when do AoS), but we actually did it ourself (F2B -> F1).
 
Hi all, it's me again. We went to InfoPass and IO confirmed that this method works. IO said upgrade is automatically because it's beneficial but need to request downgrade because it's from first to third preference.

So here is the problem. The rule of California office said (I forgot where I got the pdf file but it's from this forum) for an approved 130 petition to upgrade and doing AOS here, contact USCIS or the local office. We called USCIS, the first lady said she can only make request for us, and gave us confirmation number, and we have to wait 30 days notice confirming the upgrade is completed. Before that, cannot get married. The second one said it will take 45 days. The third one said they cannot touch an approved 130 not even think about changing the category. We counter this difficulty even on our first step asking for upgrade. :(

This sounds strange and would like to have your opinion/advice:
1. Is getting a confirmation letter a must? how long do we expect for that?
2. Anyone heard of a case for a upgrade rejected?

We will go to InfoPass again. But still thanks for you all.
 
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There is no such thing as "rule of California office". Green Cards are federal, not state thing, and all rules are federal. I've NEVER heard the upgrade can be rejected nor I heard the "downgrade" takes whatever number of days "because it's downgrade". I think the person you talked to was not very knowledgeable (and yes, it happens all the time too - CIS personnel is very dumb sometime excuse my French). If you really want to be 100% sure - spend $100+ and go to the good immigration lawyer for 30 mins interview and ask all these questions and steps and then just follow them ignoring what the clerks said.
 
From what I read it says to visit local CIS office or web site to find how to file for AoS if the dates are current. So I'd say filing (with the letter with explanation and proof of USC attached) is a way to go. But again JUST IN CASE I'd talk to the attorney. You don't want to make a wrong step in situation like that!
 
Thanks KittenKat!

Went to InfoPass. IO again confirmed that upgrade and downgrade is automatically. Letting them know by mailing in the documents is just something of notification and we won't expect anything from them. She told us she will update our info (upgrade) immediately today so we don't need to write the letter, but if we want, we can still mail the naturalization copy to the office that sent us receipt of I-485.

Put the long story short. IO said we can get married immediately after the date of his mother's naturalization and he will keeps the same PD and won't lose the eligibility for GC. And if he does, I can file I-485 as derivative beneficiary. The only difference is that they may reschedule his interview because I will have to interview with him (just received notice for interview in mid November.) But it won't have any negative impacts on his application except for the time delay.

So, we went to court and get married! Also mailed documents to Missouri and Chicago office. Will do the same thing for downgrade next week after we get the certificate of marriage. And will also file my I-485 with a cover letter about this. Then wait for the receipt number of my I-485.

Hope to get the receipt number soon and go to the interview on the original schedule. Wish us luck!
 
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