Wife Pending I-485 while Husband (Primary) became naturalized citizen

[niran1974]

I have a question/concern in regards to my wife's pending I-485 petition.

Here is the brief summary of our situation.

I filed for my Green card through Employment based and filed I-485 for both of us in Dec 2003.

My I-485 got approved in Aug 2007 and my wife's remained pending until now, and she's been using

Advance Parole and EAD for Travel and work for all these years. Probably we renewed her EAD 7 or 8 times so far.

Recently as i became eligible for Citizenship i applied for it just about a month ago and i think it will take another couple of months to process the citizenship.

Now my questions are

1. Once i get my citizenship what will happen to her pending I-485

2. If I file for I-130 and I-485 through family based do we have to get a new EAD for her and do we need file new I-765 for EAD and I-131 for AP ?

3. If I don't want to file family based then can we just wait on employment based pending I-485?

My wife is working currently and we don't want her to have any issue with her EAD validaity so.

Please shed some light on this.

Thanks.

[Belle]

1. It remains pending.

2. You may not file I-485 for her, and she herself should not file one, unless she has extra $1,000 burning a whole in her pocket. You may file I-130 to sponsor her as your spouse. She may choose to switch over her eligibility to family, i.e. I-130. Her EAD and AP are solely dependent on her pending I-485. If that I-485 is pending, the EAD and AP are valid.

3. Sure.

[niran1974]

1. It remains pending.

2. You may not file I-485 for her, and she herself should not file one, unless she has extra $1,000 burning a whole in her pocket. You may file I-130 to sponsor her as your spouse. She may choose to switch over her eligibility to family, i.e. I-130. Her EAD and AP are solely dependent on her pending I-485. If that I-485 is pending, the EAD and AP are valid.

3. Sure.

I am still not clear about one thing,

If my wife wants to switch to family based GC after i get my citizenship then what are the steps i need to take.

1. File I-130 for her

2, File I-485, I-765 for EAD and I-131 for AP for her?

or

3. File I-130, I-485, I-765 for EAD and I-131 for AP for her? as one step

or

3. File I-130, I-485, and will the current EAD and AP will be valid for her?

Thanks,

[pontevecchio]

Send them a letter referencing her pending application and inform them that you are now a citizen.

[Belle]

1. Possible.

2. Impossible. YOU can't file I-485/AP/EAD for HER. Only SHE can. Can she file for your driver's license? No! The same here.

3. See above.

She may choose to keep her pending I-485 and switch over her eligibility to family (you will have to file I-130 to sponsor her), or she may withdraw her pending I-485 and file a new one. She may. Not you.

[niran1974]

1. Possible.

2. Impossible. YOU can't file I-485/AP/EAD for HER. Only SHE can. Can she file for your driver's license? No! The same here.

3. See above.

She may choose to keep her pending I-485 and switch over her eligibility to family (you will have to file I-130 to sponsor her), or she may withdraw her pending I-485 and file a new one. She may. Not you.

So based on my reading and understanding once i receive my citizenship it's better I file I-130 to sponsor her and send a request letter to USCIS to transfer her I-485 pending application to family based quota.

So guy's think that's the best strategy?

[pontevecchio]

Yes. Since she would be immune to most problems as a wife of an USC. You have never mentioned what your Lawyer thought?

[niran1974]

Yes. Since she would be immune to most problems as a wife of an USC. You have never mentioned what your Lawyer thought?

Actually I don't have a lawyer now, i switched couple of jobs on AC 21 and once i left my primary employer we did not use any lawyer for EAD/AP 's.

[rambobu]

I am in exact same situation. My wife goes for her interview end of July. My EB3 PD is getting close, mine being 10/24/2002. I spoke to one the best known attorneys in the country and i was told that the 485 is supported by the 140 (one can think of the 140 as a pillar) and once the original applicant becomes a US citizen that pillar is no longer valid. Meaning if i become current and my wife is a citizen the 485 will be denied. The attorney suggested that since i already have a 130 approved (F2A) we can send in a letter the very next day to marry the pending 485 to the approved 130.

[niran1974]

I am in exact same situation. My wife goes for her interview end of July. My EB3 PD is getting close, mine being 10/24/2002. I spoke to one the best known attorneys in the country and i was told that the 485 is supported by the 140 (one can think of the 140 as a pillar) and once the original applicant becomes a US citizen that pillar is no longer valid. Meaning if i become current and my wife is a citizen the 485 will be denied. The attorney suggested that since i already have a 130 approved (F2A) we can send in a letter the very next day to marry the pending 485 to the approved 130.

Thanks for the information, so in my wife's case as soon as i become citizen i need to apply for I-130 and send a letter to USCIS with the receipt of I130 & I-485.

[carmel_in]

My wife's I-485 was denied because I became the Citizen, now I am going through MTR and Filing a new 485. I actually applied for her I-130 prior to 485 denial but I was waiting for approval to write a conversion request to USCIS and unfortunatly our PD became current and they denied her 485 stating that Primary is no longer a LPR (Became US Citizen) so there is no basis for derivative petition.

 

Did anyone successfull in getting the MTR approved in similar case? When you sent the I-130 receipt to USCIS did they convert her case to Family based?