Will my I-485 and EAD be revoked before getting Divorce

[helpless4now]

HI I came to US on H4 and got my EAD .now I am on My EAD.I and My husband(he is primary applicant) filed for I-140 and I-485 which are pending and now we are living separately. can my husband revoke my EAD,I-140 and I-485 before divorce or can I stay on my EAD until I get divorce. I met an attorney and he is telling that he can revoke my I-485 with out my knowledge and i will be out of status and I dont what to do.your answers will be appreciated

 

[nscagony]

Your status derives from being married to your husband. If he informs USCIS that you are getting divorced your I-485 and EAD/AP will be revoked. They will notify you at whatever address they have on file for you.

 

[TheRealCanadian]

I met an attorney and he is telling that he can revoke my I-485 with out my knowledge and i will be out of status and I dont what to do.your answers will be appreciated

The I-485 and EAD are your petitions, not your husband's. If he withdraws them without your consent then he has committed fraud and perjury and can be charged.

 

[TheRealCanadian]

If he informs USCIS that you are getting divorced your I-485 and EAD/AP will be revoked. They will notify you at whatever address they have on file for you.

They will do no such thing until the divorce is final. Being married is like being pregnant - you either are, or you aren't.

 

[helpless4now]

Thanks for the immeadiate response.

To revoke I485/I140 basically should he attach a divorce decree and letter saying that we have been divorced to the INS.

Bottomline until my divorce is finalised he can't do anything to my I485/I140 Is that what you guys meant

 

[JohnnyCash]

They will do no such thing until the divorce is final. Being married is like being pregnant - you either are, or you aren't.

One doesn't need to be divorced or even separated for that matter in order to stop the derrivative petition. OP's husband is the primary beneficiary and he has all the right to decide whether his wife should be derrivative beneficiary from his petition or not...He can make her petition to stop from processing at any stage of the processing but before his case is decided. Once the case is decided then revocation is very hard, unless there is a marriage fraud issue. He doesn't need to have divorce in order to kill his wife's eligibility for the benefit.

Yes, OP's I-485 and EAD are hers, and not her husband's, and he cannot request to withdraw her I-485 but he can certainly ask the agency to withdraw her from his petition as a derrivative beneficiary. Afterall, he is the primary beneficary for the benefit and her I-485 is based upon derrivates eligibilty from her husband's petition. Further, divorce itself doesn't revoke anything, it's notifying the USCIS about the divorce does.

But again, her husband doesn't need to have divorce decree or anything to make a request to take her name out from derrivates beneficary. He can do that...at any time...and without any reason... and without her knowledge...but of course, he cannot do anything about her pending I-485, but it will be cancelled/denied once he would make a request to USCIS to dump her as a derrivate beneficiary on his petition. Then USCIS will notify OP by a certified letter that her I-485 is denied because there is no eligibility she has anymore for it as her husband requested to remove her name from his petition.

 

[PraetorianXI]

One doesn't need to be divorced or even separated for that matter in order to stop the derrivative petition. OP's husband is the primary beneficiary and he has all the right to decide whether his wife should be derrivative beneficiary from his petition or not...He can make her petition to stop from processing at any stage of the processing but before his case is decided. Once the case is decided then revocation is very hard, unless there is a marriage fraud issue. He doesn't need to have divorce in order to kill his wife's eligibility for the benefit.

Yes, OP's I-485 and EAD are hers, and not her husband's, and he cannot request to withdraw her I-485 but he can certainly ask the agency to withdraw her from his petition as a derrivative beneficiary. Afterall, he is the primary beneficary for the benefit and her I-485 is based upon derrivates eligibilty from her husband's petition. Further, divorce itself doesn't revoke anything, it's notifying the USCIS about the divorce does.

But again, her husband doesn't need to have divorce decree or anything to make a request to take her name out from derrivates beneficary. He can do that...at any time...and without any reason... and without her knowledge...but of course, he cannot do anything about her pending I-485, but it will be cancelled/denied once he would make a request to USCIS to dump her as a derrivate beneficiary on his petition. Then USCIS will notify OP by a certified letter that her I-485 is denied because there is no eligibility she has anymore for it as her husband requested to remove her name from his petition.

From what petition? from an approved I-140? I do not think so.

 

[helpless4now]

I am really confused about this issue because lawyers are telling differently some are telling he can revoke and some are telling that its not possible that why I posted my issue here but to tell really I am still confused because some are telling that my I-485 and EAD can be revoked because he is the primary applicant.please help me about this issue

 

[TheRealCanadian]

OP's husband is the primary beneficiary and he has all the right to decide whether his wife should be derrivative beneficiary from his petition or not...

Nonsense. A derivative beneficiary's basis stems merely from the marriage or parent-child relationship, not any active sponsorship by the primary beneficiary.

But again, her husband doesn't need to have divorce decree or anything to make a request to take her name out from derrivates beneficary. He can do that...at any time...and without any reason... and without her knowledge...

Wrong. Care to back up your opinion with fact?

 

[JohnnyCash]

From what petition? from an approved I-140? I do not think so.

Yes. From his approved I-140. Petitions like I-140, I-130, I-360, etc are JUST eligibility (reason) for the the green card on I-485 (AOS). They can revoke at anytime before the approval of I-485, and their approval does NOT gurantee the green card/legal status/or any benefit. The approval on these kinds of petitions are just eligibility than anything else.

Further, do not forget the fact that OP is the derrivative beneficiary on her husband's petition who is the primary applicant. She is not getting her AOS processed because of her own merit or her own eligibility; rather she is getting this benefit because of her husband who is primary applicant to the benefit. Primary applicant has all the right to ask USCIS to cancel her derrivative eligibility becuase he is the primary applicant and her eligiblity for the benefit is based upon his eligiblity.

It's same to the fact that US citizen spouses can always withdraw or request to revoke an approved I-130 for their alien-spouse so long I-485 for their alien-spouse hasn't be adjudicated. They have the whole right to decide whether or not to allow alien-spouse to have their status adjusted because I-130 belongs to them and by them which is the sole basis of alien-spouse eligibility for the green card on I-485. Alien-spouses don't become eligible to adjust their status by their own nor their status could be adjusted by them being merely with the US citizen spouse. Rather US citizen spouses are required to file I-130 in order to adjust the status for alien-spouses. Again, INS cannot adjust status for alien-spouses if US citizen spouses don't file I-130, and alien-spouses don't become eligible for the benefit by their own unless they can prove they were battered in the marriage by US citizen spouses.

All I'm trying to say is- OP is a derrivative beneficiary for the benefit based upon her husband's petition who is a primary applicant. If he doesn't want his wife to derrive any immigration benefit on the expense of his eligiblity then he has all the right in the world to stop her getting anything on his expense. However, if AOS gets approved then he cannot do anything to revoke her status because then it becomes a different issue....but prior to the adjudication on OP's I-485, he controls her eligibility for the benefit.


http://www.hooyou.com/divorce/faq.html
http://www.lexisnexis.com/practiceareas/immigration/pdfs/web623.pdf
http://www.osasimmigration.com/immigrantvisas.html

 

[TheRealCanadian]

Primary applicant has all the right to ask USCIS to cancel her derrivative eligibility becuase he is the primary applicant and her eligiblity for the benefit is based upon his eligiblity.

The only way he can do that is to withdraw his I-485 and ask that his I-140 be withdrawn. He cannot get a GC on his own while requesting that USCIS cancel the wife's petition.

It's same to the fact that US citizen spouses can always withdraw or request to revoke an approved I-130 for their alien-spouse so long I-485 for their alien-spouse hasn't be adjudicated.

This is because the USC spouse files an I-130 and explicitly sponsors the wife via a petition. Please tell us what petition the husband in this case has filed with his wife as a beneficiary?

You are completely incorrect.

 

[JohnnyCash]

The only way he can do that is to withdraw his I-485 and ask that his I-140 be withdrawn. He cannot get a GC on his own while requesting that USCIS cancel the wife's petition.

This is NOT the only way he could make his wife's eligibility for the GC canceled. It's true that the spouse (the wife in this case) of primary applicant (husband in this case) on Form I-140 AUTOMATICALLY becomes eligible for the benefit as a derivative beneficiary by virute of just being married to the primary applicant (husband in this case). However, the marriage must be valid...not only in term of legal jargon but also in term of immigration...in order for USCIS to grant a derivative benefit to the wife. Some may say that parties have real/valid/legal/bonafide/legitimate marriage because they might have married in court and have marriage certificate to prove it. But as you know well that a marriage certificate alone is not enough under immigration laws to determine the legitimacy of the marriage; otherwise there would not have been the need to all those truck-fulled documents and grilling on stroke interviews on marriage based cases...

In this case, wife is about to obtain her immigration status as a derivative applicant by virute of her marriage to primary applicant on Form I-140. Her marriage must need to be determined by USCIS under immigration terms than just under legal term to prove the legitimacy of it. That being said, if her husband, who is the primary applicant, will inform the USCIS that his marriage is shaky or on the verge of terminating it then there is no way in this world USCIS will let her adjust her status as a derivative applicant. I can put my life on it. Wife is eligible for GC under this category because of her MARRIAGE to her husband (primary applicant). She hasn't become eligible for green card on her own merit. The ONLY reason for derivative status to be in immigration laws is just for family unification. That's all. If USCIS would know that there won't be family unification anymore, they will revoke the elgibility of derivative applicant at any time...of course upon known. USCIS won't know anything about parties's shaky marriage...so they might approve wife's AOS...unless they are notified by someone or if parties get divorced before AOS is adjudicated. Once AOS is adjudicated, nothing could be done. Case closed.

 

[PraetorianXI]

The only way he can do that is to withdraw his I-485 and ask that his I-140 be withdrawn. He cannot get a GC on his own while requesting that USCIS cancel the wife's petition.



This is because the USC spouse files an I-130 and explicitly sponsors the wife via a petition. Please tell us what petition the husband in this case has filed with his wife as a beneficiary?

You are completely incorrect.

I am PraetorianXI and I approve this message.

 

[JohnnyCash]

Please tell us what petition the husband in this case has filed with his wife as a beneficiary?

On the case in hand, husband has NOT filed ANY petition WITH his wife nor FOR the wife; however, by virtue of petition I-140 (by his employer) for him, his wife AUTOMATICALLY becomes a beneficiary for the benefit here...as a derivative applicant. If his employer had not filed petition I-140 for the husband AND if she wasn't married to him, she had not been eligible for the benefit. That means, she has become eligible for the benefit because of him...though indirectly if not directly.

And since her marriage to her husband is sole reason for her to be eligible for the benefit then marriage should be legitimate in the eyes of immigration...and not in the eyes of court so to say that a marriage certificate is enough to prove the marriage. When Congress inacted derrivative status, their intent was unification the family. That's why law offers derivative applicants to be eligible for the benefit on the same day when primary applicant would be eligible without waiting for a visa number to be available. So, the legitimacy of their marriage is the key point here. If USCIS would ever find out that parties are in the verge of divorce, there is no way they would approve wife's AOS.