485 Approval when Both Spouses filed as Primary

[krucie]

Hello Everyone,

I'm hoping that some of you can provide some suggestions on how I can proceed with my case. Here are the details.

My spouse and I each filed our 485 applications separately (mine was filed when I was single, and my spouse filed his after we got married). In essence each of our 485s were filed as primary. I'm in the EB3 India category, and my spouse is in the EB2 ROW category. When my husband filed his 485, he did mention that I already had a 485 pending, and asked USCIS to use cross country chargeability to approve my application when his 485 got approved. We also provided our marriage certificate, etc. when he filed his application.

My husband's 485 got approved last week, but there hasn't been any activity on my case. I was wondering how I should proceed. I'm afraid that USCIS may not have linked my application to his. I was thinking about making an InfoPass appointment within the next week or two if there isn't any activity on my case. But I wasn't sure if I need to wait a certain amount of time before I contact USCIS?

Any advice would be appreciated.

Thanks.

[Belle]

You need a lawyer. You don't need cross country chargeability - you need to become derivative beneficiary of his petition (yes, it is different). Your husband can't do it - the initiative must come from you because we are talking about your application here. I would probably start with creating a service request on your I-485 to change your eligibility to your husband's derivative (provide his A and I-485 numbers). Then you should receive an RFE for marriage dociments and proof that his petition was filed/approved. There are other ways like sending those documents without RFE, but any unsolicited letters sent to the USCIS take months to process. Your most radical option is to file a new I-485 based on being his derivative, and once it is pending, withdraw your old I-485.

[pontevecchio]

Good Idea. Use your charm with INFOPASS and then decide whether a Service Request is needed or a Lawyer?

[krucie]

Thank you for your responses. Is it ok to ask for service on the case right away, or do I need to wait a certain amount of time before doing so?Also, in this particular case, is using InfoPass a better bet, as opposed to calling the NSC to open up a service request?

[pontevecchio]

First comes the INFOPASS. The Officer will look over your case and may do one of several things more so if you are dressed professionally and are polite and clear about your problem.

1. He may stamp a temporary I-551.

2. He may tell you the card will arrive in a few days.

3. He may suggest a Service request.

The reason for service request as a last resort is that they will not entertain questions for 60 days thus giving them a free pass if they delay.

[pontevecchio]

If no joy contact the Immigration department in the Federal Senators Office.

[Belle]

You cannot get anything done at the InfoPass other than get information - that's why it is called InfoPass. You will still have to call 1-800 number to make a service request. You can do at any time, since your circumstances changed.

[pontevecchio]

It is possible for the INFOPASS Officer to raise a service request.

[krucie]

Thanks again for the responses. Belle, I was under the impression that if I got an InfoPass appointment, they could initiate an inquiry into the case? The reason I say this is because I had used InfoPass in the past to initiate an inquiry on my I-140 (without calling the 1-800 number), and it worked.

Thoughts?

[Belle]

Maybe it depends on which officer you get. When my address was incorrect on the petition (and yes, I changed it and had proof), the officer just told me to call the number and make a request myself. However, what is possible, is to get completely different advice from the officer, often, not very helpful advice. Like, the officer may tell you that it is impossible to change eligibility, and you must file a new I-485 (that's incorrect, and I would be very careful about withdrawing I-485 if you are no longer in H1 status). Or the officer tells you to file some additional documents that just end up sitting in the mailroom for months before anyone even looks at them. I would be very careful about it. Your procedure is not very straightforward, and your best bet is to get the USCIS to initiate an RFE on your case - this way, when you send your documents, they will get on the officer's desk right away.

[krucie]

Thanks Belle. When I open the service request, do I need to specifically request for change in eligibility (the idea here would be not to confuse the NSC rep, and keep it as simple as possible)? I was planning on saying that we filed our 485s separately, his got approved, mine is still pending, and to link my application to his. Do I need to add any information to that?

Also, my 485 was filed at NSC, and his was filed at TSC, so I don't know how that's going to affect things. By the way, is there a possibility of opening up a service request with a secondary level rep at NSC using the POJ method? Just throwing out possible options here.

Thanks.

[pontevecchio]

Would it not be easier to let a Lawyer do the heavy lifting? Once you file a service request you cannot talk to them for 60 days.

[Belle]

Do not go into long stories, be as succinct and to the point as you can. Say you need to change your eligibility from being a primary to becoming a derivative of your spouse, who is the primary of his own petition. The fact that your spouse's application was apporved really has no bearing on this step. It will have bearing on the second step, which is approval of your petition (derivative can't be approved before primary), but don't mention it yet, unless asked. You will need to give his A number and his I-485 receipt number.

"I was planning on saying that we filed our 485s separately, his got approved, mine is still pending"

This will definitely be confusing and possibly dangerous - the rep will think that your spouse was YOUR derivative, and the application got approved even though the dates were not current, so his application need to get "unapproved" or reversed into pending. "Filed separately" means nothing to them - everybody files their own I-485, so everybody is separate.

You have to use words "primary beneficiary" and "derivative beneficiary" to indicate who's petition you want to use. They WILL NOT understand other wording.

[krucie]

Thanks. I'm waiting for my spouse's approval notice and green card to arrive, at which point I'll pursue my case further. I'll try the InfoPass route first, and if that doesn't help, then opening up a service request.

I was also thinking about notifying USCIS via mail. Can't really hurt, right? Are there any special mailing instructions that would help to bypass the mailroom, and get the information directly to a supervisor?

[pontevecchio]

to bypass the mailroom

A Lawyer can do that.

[krucie]

Hi Everyone,

Here's the update on my case.

Opened up a service request with USCIS to transfer my case from primary beneficiary to derivative beneficiary of my spouse. Received an RFE to prove marriage, and that it is bonafide. I will be responding to the RFE with the following evidence:

- Copy of Marriage Certificate

- Proof of Joint Property Ownership

- Proof of Joint Bank Account

- Proof of Spousal Insurance

- Proof of Joint Car Insurance

- Wedding Photos

Please let me know if this will suffice, or if I need to provide any additional information.

Thanks! Fingers crossed that my approval will come through soon. :)

[Belle]

Looks like you are on the right track. Do include a copy of his I-485 approval, just in case. Hope your application is approved soon.

[krucie]

Hi Everyone,

As I mentioned previously after opening up a service request on my case, I received an RFE from USCIS, to which I responsed. The RFE letter stated that I would have a decision on my case within 60 days, which have now passed. Of course, I know that in the grand scheme of things one can't always bank on having a response by the timeline given by USCIS, and not having a response by now shouldn't come as a surprise. However, I do want them to know that the deadline has come and gone. I'm wondering if you have any suggestions on the best way to approach this. Should I call the service center, should I take an InfoPass appointment, or should I inquire via the Ombudsman? If I call the service center, do they open up another request, or do they follow other procedures?

Any advice would be appreciated.

Thanks.

[Belle]

You can create another request for processing taking longer than expected time. That should be the first step.

[krucie]

Thanks for your response Belle. Any idea if the 60 days timeframe listed are calendar days, or working days?

[mohankc]

Originally posted by krucie:

Thanks for your response Belle. Any idea if the 60 days timeframe listed are calendar days, or working days?

Just pick up the phone and try opening a service request. They will tell you if you are calling them too soon.

[Belle]

Usually calendar days. Not sure of the USCIS workload now, but it took my application about 3 months to get approved after my last item (namecheck) cleared. So, you may get your answer any day now.

[krucie]

Thanks for the responses!

[krucie]

Hi Everyone,

So I'm still waiting on USCIS to adjudicate my case. I opened up another service request in February. Got a letter from USCIS stating that my case was in line to be pulled by an officer, and to contact them within 90 days if I hadn't received an update. The 90 window will be up this week. I'm going to follow up with USCIS again, but also plan on contacting the USCIS Ombudsman Office for assistance. Any thoughts on whether InfoPass would be more helpful than calling NSC at this point? It's been 6 months now since I opened up the 1st service request.

Thanks.

[Belle]

InfoPass is for information. Generally, you can't ask for any action on the petition.