Refiling AOS

[dzongrila 0]

This is my history in a nutshell.

My wife had applied for employment based Green Card way back in 2004. She had applied through a lawyer.

I was added as a 'derivitive' during the I-485 filing stage.

She received her green card in Nov of 2004. She got her citizenship this year, while my I 485 is still pending.

Although when I had applied for I 485, I had entered the US with a L2 visa. I have since then been going in and out of the country using Advance Parole. I also have got a EAD card and a job.

Recently I had an interview call at the local INS office where I was told that I'll be better off filing a new AOS since my spouse is now a USC. The lady also advised that I should also submit a withdrawal form to withdraw the current I 485 that is pending for the past 6 years. I am really concerned about it as I work on EAD and my EAD is tied to this pending I 485. My question is do I absolutely need to withdraw the pending I 485? I was planning to wait till I get a new EAD through the new I 485 that I am going to file. Please advise.

As per INS's suggestion, now I want to speed things up by filing a I 130 and another I 485 simultaneously.

The questions in I 485 are very confusing. Should I try to do this myself or just pay a lawyer ?

I am confused over the following questions:

I485 Part 1:

Current USCIS Status ?

Should I say AOS Pending ?

I485 Part 2:

should I check h(Other) and explain that I am filing with a I 130 or should it be a?

I485 Part 3:

Were you inspected by a US immigration officer ?

Non immigrant Visa number ?

Consulate where visa was issued ?

then the most important

have you ever applied for permanent residence status in the US ?

I haven't used a visa since 2004 as I've been working on EAD and use AP to travel abroad. So what should I answer here? For the last question, I believe I've to obviously say 'Yes'. Is INS then going to check that I already have got a pending I 485 that hasn't been withdrawn yet. Will it cause any problem?

Thanks for any and all help.

/D

[VanessaTony 3,567]

I am confused over the following questions:

I485 Part 1:

Current USCIS Status ?

Should I say AOS Pending ? No because by the time you file THIS one you have cancelled the previous AOS. Therefore your status is technically still L2 because you never had the AOS approved/denied

I485 Part 2:

should I check h(Other) and explain that I am filing with a I 130 or should it be a? It should be A. You don't need to include the I-130 approval because you will be filing it at the same time as the I-130

I485 Part 3:

Were you inspected by a US immigration officer ? When you entered on the L2, did you get an I-94 in your passport? You will need that so I assume since you entered on and L2 that you went through an immigration line at the airport?

Non immigrant Visa number ? your L2 visa has a red number on it

Consulate where visa was issued ? Where did you get the L2 from?

then the most important

have you ever applied for permanent residence status in the US ? Well yes you have. I would think that you would actually "upgrade" your I-485.. but I have no idea about that so I hope someone else will know

I haven't used a visa since 2004 as I've been working on EAD and use AP to travel abroad. So what should I answer here? For the last question, I believe I've to obviously say 'Yes'. Is INS then going to check that I already have got a pending I 485 that hasn't been withdrawn yet. Will it cause any problem?

I have responded to your questions above in red. I honestly don't know what will happen if you file the I-130 and I-485 while another is still pending. Maybe someone in the other forum (where i'm moving this) will know.

Good luck.

** moved from "Adjustment of Status (Green Card) from Family Based Visas" to "Adjustment of Status from Work, Student, & Tourist Visas" as you are adjusting from a visa other than a K1, K2, K3 & K4 which is what the previous forum is for**

p.s. It hasn't been INS for a long time. It's USCIS now

[dzongrila 0]

Thanks for the quick response.

Well, as you know, everytime you leave the country, they take away your I-94 card. So obviously I don't have the I-94 that I had got through my L2 visa.

I am really concerned about keeping my 'work' status that is based on EAD. I can't afford to lose that status. So if refiling nullifies the pending I 485, then I'll be inviting troubles.

I believe by 'upgrading' my current I-485, you meant that I should first get I-130 approved and then submit the necessary approval documents against my current I 485. I thought about this option too, but I've read some posts that don't suggest taking that route. It'd have been easier and would have saved me some money too.

[Bobby+Umit 161]

Here is the "upgrade" instructions Vanessa pointed out:

What if I filed a petition for a relative when I was a permanent resident, but I am now a U.S. citizen?

If you become a U.S. citizen while your relative is waiting for a visa, you can upgrade your relative’s visa classification and advance the processing of that petition by notifying the appropriate agency of your naturalization. When you are a U.S. citizen, your spouse and any unmarried children under age 21 will have visas immediately available to them.

• If you become a U.S. citizen after your Form I-130 petition is already approved and it has been forwarded to the U.S. Department of State’s National Visa Center (NVC), you should notify the NVC that you have become a U.S. citizen. Requests to upgrade petitions due to the naturalization of the petitioner

should be sent to:

National Visa Center

32 Rochester Avenue

Portsmouth, NH 03801-2909

Please include a letter with information regarding your relative, a copy of your Naturalization Certificate, and a copy of the petition approval notice. Once the NVC is notified that the petitioner has been naturalized, the NVC will immediately send the visa information on your relative to the designated U.S. Embassy or consulate abroad. To confirm that your approved petition has been forwarded to the NVC, you can contact the NVC’s automated record message system at 1-603-334-0700 and, with a touchtone telephone, enter your USCIS receipt number.

• If you become a U.S. citizen and your relative’s petition has not yet been approved by USCIS, you will need to notify the Service Center where you filed your relative’s visa petition. You should send the notification to the Service Center address located on the receipt notice you received when you filed your Form I-130 petition.

Please include a letter with information regarding your relative a copy of your Naturalization Certificate, and a copy of the petition receipt notice. Call Customer Service at 1-800-3755283 for additional assistance or if you are unsure about the status or location of your petition.

• If your relative is your spouse and he or she has children who are your natural children, stepchildren, or adopted children, and you did not file separate petitions for them, you must file a separate petition for each of them with evidence of your U.S. citizenship. Please include a copy of the receipt notice for the original petition.

Source

[dzongrila 0]

Here is the "upgrade" instructions Vanessa pointed out:

Source

Thanks Bobby+Umit. As I've said in my previous email, I've read some posts where it was advised against submitting I 130 approval notification to a pending I 485. Even the local USCIS lady whom I had met recently for an interview suggested that I should submit a fresh I 485.

Do you happen to know whether I can submit a fresh one without canceling the current one? I want to wait till I get the new EAD through the new I 485 before canceling the current one. Is that legal?

This is what I found on I 485 Instruction Guide.

3. Copy of passport page with nonimmigrant visa

If you have obtained a nonimmigrant visa(s) from a U.S. Embassy or consulate abroad within the last year, submit a photocopy(ies) of the page(s) of your passport containing the visa(s).

Doesn't this mean that I don't need to enter anything in part 3A of the I 485 form since my last visa was obtained in 2004? Since then I've been working on EAD and traveling on AP.