i485 aos question bout derivatives

[enoch 0]

Heres the deal, i would really appreciate it if anyone could give me their input:

My aunt sponsored my dad (F4) and our lawyer filed all the papers 485 485a 765 etc.

I'm 21, turning 22 soon, and me and my brother, we are covered by the CSPA and our family, 245i

question is: If my dad DOES NOT do his biometrics and DOES NOT goto the interview, but me and my brother go through with it, IS IT POSSIBLE FOR THE DERIVATIVES(MYSELF AND MY BROTHER) TO ADJUST STATUS? My father has been unemployed for awhile, and i dont know if he'll be sane long enough for everything before he abandons the family.

answer my lawyer gave: It depends…Usually, if primary beneficiary gets denied…derivative beneficiary gets denied as well….

here is my personal timeline:

08/06/2010 - Mailed to Chicago office Express Mail (i485, i485a, i864, i765, i131 etc.)

08/09/2010 - Received by Chicago USCIS Chicago Express.

08/18/2010 - Checks cashed

08/21/2010 - NOA's received in the mail

08/30/2010 - Biometrics appointment letter received (for 9/22)

9/01/2010 - WALKIN BIOMETRICS (Just Me though)

[JimVaPhuong 4,863]

I've tried to wrap my head around the grandfathering rules for 245(i) a few times before, and find it just about the most convoluted and confusing immigration law I've ever read. The Yates memorandum didn't really clarify it much, either.

In any case, as far as I can tell...

If your father's adjustment is based on the original petition, and your adjustment is based on being a derivative of that original petition, then yes - if he fails to adjust then you also fail. A derivative can't adjust if the primary applicant doesn't adjust. But wait... there's more!

Being the primary beneficiary, your dad qualifies for unlimited grandfathering. This means his grandfathered petition will never expire. He can try and fail to adjust as many times as he wants, until he finally succeeds. I presume you were also a qualified derivative at the time the original petition was filed. If so, then you are ALSO qualified for unlimited grandfathering. What's more - you can adjust status based on ANY visa category available to you, and not strictly only on the original grandfathered petition. In other words, if you have another family member who can sponsor you now, you can adjust based on a new petition and still use the grandfathered petition to nullify the EWI.

Got any other US citizen relatives who can submit a petition for you?

[enoch 0]

Thanks for your response, yes, all my cousins are US Citizens but does that fit into any of the family based preference visa categories?

[JimVaPhuong 4,863]

Thanks for your response, yes, all my cousins are US Citizens but does that fit into any of the family based preference visa categories?

Unfortunately, no. A US citizen can petition for a spouse, minor unmarried child, or parent as an immediate relative. They can petition for an adult unmarried child, adult married child, or sibling as a family preference. They can't petition for a cousin or other extended family member.

You aren't just restricted to using a family based immigrant visa. If you can qualify for ANY immigrant visa - even the diversity lottery - you can invoke the grandfathered petition to excuse an EWI.

Consult with an immigration attorney and see what you can come up with. The 245(i) is an ace in the hole.

[enoch 0]

For FB4 based AOS interviews, do they interview the derivatives(children) as well? or just the beneficiary(parent)?

so

1. do they ask questions to the derivatives?

or

2. derivatives must be present but they dont ask questions necessarily to the derivatives?

or

...?

thank you.

P.S Since the derivatives had to file SEPARATELY but linked for AOS from the parents, do they receive interview appointment letters? or just the beneficiary(parent)?

[JimVaPhuong 4,863]

For FB4 based AOS interviews, do they interview the derivatives(children) as well? or just the beneficiary(parent)?

so

1. do they ask questions to the derivatives?

or

2. derivatives must be present but they dont ask questions necessarily to the derivatives?

or

...?

thank you.

P.S Since the derivatives had to file SEPARATELY but linked for AOS from the parents, do they receive interview appointment letters? or just the beneficiary(parent)?

This I'm not sure about. Everyone I know who received an FB-4 interviewed at a US consulate abroad, and they interviewed everyone over the age of 14. I don't know anyone who has applied for AOS while in the US based on an FB-4 petition. This is not a very common scenario.

Technically, I think they can ask any applicant to appear for an interview.

[enoch 0]

We don't mind all showing up to the interview, but I was wondering, since I got my biometrics done earlier than my family members, would I receive a SEPERATE interview date? To my understanding...or logic, only the beneficiary should receive the interview letter, right?

[JimVaPhuong 4,863]

We don't mind all showing up to the interview, but I was wondering, since I got my biometrics done earlier than my family members, would I receive a SEPERATE interview date? To my understanding...or logic, only the beneficiary should receive the interview letter, right?

Again, I don't know for certain. Your situation is not common. Most people who immigrate based on family preference visas are not in the US when the petition is processed, and don't have to go through the AOS process. Consequently, they are interviewed at a US consulate.

My wife came to the US with a K1 fiancee visa, and her two teenage kids came with K2 derivative visas. We sent three separate AOS packages - one for each. We got separate receipt notices, AP, EAD, and interview letters for each. The interviews were all scheduled on the same day, 40 minutes apart. As the sponsor, I expected to have to sit through three interviews. As it turned out, they called us all in at the same time. I suspect they will do something similar with you - separate interview letters, with interviews scheduled on the same day.