Filing derivative I-485 under new USCIS Procedures for Determining Visa Availability for Applicants Waiting to File for AOS

[leasonlearned]

Hello Experts,

I have a question about whether or not I can file my wife's AOS (I-485) based on the new 2 date charts made available by USCIS in Oct 2015 Visa Bulletin. My case summary is as follows:

 

My case:

1. On H1B since 2008
2. GC Perm filed under EB2 in Jan 2010 (Priority Date: Jan 2010)
3. I-485 filed in 04/2012 (was single at that time)
4. Dates regressed in 2012, received EAD and maintaining it since.

Note: Have NOT used EAD for employment, have been maintaining H1B employment status.

 

Wife's case:

On H4 since Oct 2013

Applied for H4 EAD under the new law; case is approved

Currently not added to my AOS application since I was single at the time of filing (as mentioned above)

 

Question:

In Oct 2015 visa bulletin, USCIS issue 2 date charts under each visa category. The EB2 category is displaying the following 2 dates under these charts:

1. APPLICATION FINAL ACTION DATES FOR EB PREFERENCE CASES - 01MAY05
2. DATES FOR FILING OF EB VISA APPLICATIONS - 01JUL11

As per the 1st date, my PD is not current, but as per the 2nd date, my PD is current. Can I file my wife's derivative I-485 in this scenario?

 

Please advise.

 

Regards

[leasonlearned]

Could someone please advise on the question above?

Greatly appreciate your time.

[rkotam]

I have a similar situation to yours. After speaking to my company immigration lawyer it seems like you should be able to file a 485 for your spouse. However, since this development is still new, he has suggested to act cautiously. It's likely that the guidelines from USCIS should get clearer in the coming weeks.