Interesting derivative 485 situation

[rambobu]

I have a pending 485 as a derivative on my wife's EB3 application. She was approved in June 2007 and I was not (stuck in name check which was cleared later). Ever since the Priority Date has never been current, mine being 10/24/2002. She is ready to get her citizenship (interview scheduled in July). I have an I130 that is already approved under category F2A with a PD of 9/17/2010.

I spoke to two attorneys and i got two diffrent opinions.

The first one said as soon as primary becomes a citizen there is no basis to approve the derivative 485. 140 and 130 are pillars on which the 485 is supported. When my wife becomes a citizen the 140 is no longer valid there is no pillar to support the 485. The 485 can be potentially denied. However since i have a 130 approved we can interfile and take care of the case.

The second attorney said everything should be fine and that when i become current, which should be next 2-3 months i should be approved irrespective of my wife being a citizen or not.

Thought this might be an interesting case to dicsuss.

What happens to Parole and EAD based on the original 485?

[JoeF]

There is no problem for your GC. The application continues just fine. The I-140 does not become invalid just because she becomes a citizen.

[experio]

JoeF - I am in a similar situation, but slightly different problem... my situation:

- Similar to above, my wife became a GC holder in July 2007 but I did not. She was the primary on the EB3 GC application - and i was the dependent... I am currently working on EAD based on GC filed back in Oct, 2006 (PD).

- She has her citizenship interview scheduled for Oct 15, 2012 -- when she becomes a citizen, what happens to my 485 and EAD especially because I am a derivative applicant -- would my 485 application still holds and EAD still holds (as EB3 has retorgressed back to Oct, 2002 for India)

- last year i had filed for I-130 based on GC spouse. unfortunately even my I-130 is not approved yet - if I had the I-130 approved, I would have preferred to interfile into a family based 485 -- given my i-130 is still not approved, what are my options here??

would love to hear back from you... Vinay

[JoeF]

Once your wife becomes a citizen, she can just update the I-130 to immediate relative, and you update your I-485 to use the I-130 instead of the I-140 with interfiling. The I-130 doesn't have to be approved for that.