Saturday, January 22, 2011

Can Wife use Husband’s Priority Date or vice-versa to Interfile I-485?


Saturday, January 22, 2011 | , , , , ,

While talking to my friends this has been a very common question, if a derivative (dependent) beneficiary can use primary beneficiary’s priority date to file I-485 under employment category.

What is Interfiling?
Interfiling is a procedure that allows an applicant to change the I-140 petition upon which the I-485 is based. Essentially, the I-485 is filed based on an I-140 petition, but the applicant wants to proceed through a new or different I-140 petition. Interfiling permits the individual to "switch" the I-140 upon which the I-485 is based. This is true for the cases where an individual has just ported their case from one preference category to other (e.g. EB3-EB2) and already has I-485 pending with USCIS based on earlier priority.

Can Wife use Husband’s Priority Date or vice-versa to Interfile I-485?
In a scenario where both husband and wife have independent I-140 petitions filed by their respective employers, and where there is a set of I-485s (one for the primary spouse and one for the derivative spouse) filed with regard to one of the I-140s, there is no option of interfiling based upon an I-140 approval for the derivative spouse, even if his/her preference category is better and make them eligible to file I-485 based on primary’s priority date. This is because the roles of derivative spouse and primary applicant would have to be reversed in this situation. There is no mechanism when interfiling to shift applications from derivative to primary and from primary to derivative, therefore making them improperly filed with the other I-140 petition. You cannot mix and match your priority date to take advantage of both worlds.

Of course, if the same person has an EB3 and now an EB2 I-140 petition, the USCIS will allow the EB2 I-140 approval to replace the previously-filed EB3 I-140 petition approval.


You Might Also Like :


7 comments:

Anonymous said...

What happens when couple has EAD based on the first application (EB3-ROW) and the dependent gets an approved I-140 under EB2-ROW. Can the couple still use the existing EADs but switch to EB2 case and would you be filing a new I-485?

CM said...

Your's and your partner's petitions are independent. At a time you can have more than one I-485s pending at USCIS.

You can continue working on EAD based on earlier EB3-ROW petition. You do not need to request for new RAD. Filing for EAD is optional for each case.

Since EB2-ROW is current now,I would file a new I-485 with your partner as primary and you as a dependent. I would also send a cover sheet requesting them to interfile your case to take advantage of your previously pre-adjudicated I-485 petition under EB3 category. This may be a unique scenario where this will be acceptable to USCIS. I will definitly contact a good lawyer who can handle this case more efficiently.

Anonymous said...

@CM

Thanks

Anonymous said...

Did anyone get this done successfully? My attorney sent my approved I140 (EB2-ROW) and asked for the pending I485 (through my spouse, EB3-ROW) to be processed using my I140. We ended up getting a letter 30 days later saying the date is not current. The attorney contacted again and made sure (as we are told) they noted everything properly. We received another letter 15 days later with same response as the first letter. It has been almost 60 days now since we started the interfile transfer process and nothing seems to be happening. Now I am wondering if this is intentional or did something change.

CM said...

This is common issue that is seen when old PD belongs to apouse and new PD belongs to you. I would file new I-485 application with fees. Send a cover letter on bright color sheet with a note about your past I-485 application with receipt number mentioning it belongs to you and your spouse from her EB3-ROW case. They will link your case later based on this. They may use your new fees to process application or in some cases later decide to return it.I will not waste time that could be used towards processing time.


Anonymous said...
Did anyone get this done successfully? My attorney sent my approved I140 (EB2-ROW) and asked for the pending I485 (through my spouse, EB3-ROW) to be processed using my I140. We ended up getting a letter 30 days later saying the date is not current. The attorney contacted again and made sure (as we are told) they noted everything properly. We received another letter 15 days later with same response as the first letter. It has been almost 60 days now since we started the interfile transfer process and nothing seems to be happening. Now I am wondering if this is intentional or did something change.

CM said...

This is common issue that is seen when old PD belongs to apouse and new PD belongs to you. I would file new I-485 application with fees. Send a cover letter on bright color sheet with a note about your past I-485 application with receipt number mentioning it belongs to you and your spouse from her EB3-ROW case. They will link your case later based on this. They may use your new fees to process application or in some cases later decide to return it.I will not waste time that could be used towards processing time.


Anonymous said...
Did anyone get this done successfully? My attorney sent my approved I140 (EB2-ROW) and asked for the pending I485 (through my spouse, EB3-ROW) to be processed using my I140. We ended up getting a letter 30 days later saying the date is not current. The attorney contacted again and made sure (as we are told) they noted everything properly. We received another letter 15 days later with same response as the first letter. It has been almost 60 days now since we started the interfile transfer process and nothing seems to be happening. Now I am wondering if this is intentional or did something change.

CM said...

Your's and your partner's petitions are independent. At a time you can have more than one I-485s pending at USCIS.

You can continue working on EAD based on earlier EB3-ROW petition. You do not need to request for new RAD. Filing for EAD is optional for each case.

Since EB2-ROW is current now,I would file a new I-485 with your partner as primary and you as a dependent. I would also send a cover sheet requesting them to interfile your case to take advantage of your previously pre-adjudicated I-485 petition under EB3 category. This may be a unique scenario where this will be acceptable to USCIS. I will definitly contact a good lawyer who can handle this case more efficiently.

Post a Comment