Question about derivative status

[qyz891023 0]

Another question came up, if me, the derivative, found a job before the consular processing interview, and i went back home and failed to pass the interview, can i come back to US on h1b visa

THanks

Edited September 16, 2011 by mikeqiu

[qyz891023 0]

also, can I file i485 for myself now before my mom has her interview in China? is this doable?

[JimVaPhuong 4,863]

Another question came up, if me, the derivative, found a job before the consular processing interview, and i went back home and failed to pass the interview, can i come back to US on h1b visa

THanks

Yes. You'll have to wait until next year when the next round of H1B's are passed out. You got an employer who is willing to sponsor you?

also, can I file i485 for myself now before my mom has her interview in China? is this doable?

No. A derivative's eligibility comes from the primary beneficiary. Until your mother gets a visa you aren't eligible to adjust status. If, for some reason, she's found ineligible then you would also be ineligible.

[qyz891023 0]

Yes. You'll have to wait until next year when the next round of H1B's are passed out. You got an employer who is willing to sponsor you?

Am working on it haha.

No. A derivative's eligibility comes from the primary beneficiary. Until your mother gets a visa you aren't eligible to adjust status. If, for some reason, she's found ineligible then you would also be ineligible.

Ok, but what do u mean by "until my mom gets a visa"? Didnt she already being assigned to a immigration visa in Dec 2010? or do u mean when she receives the interview approval notice? or when she landed in the US? i just want to find out what's the exact time that i can file i485

Edited September 16, 2011 by mikeqiu

[JimVaPhuong 4,863]

Ok, but what do u mean by "until my mom gets a visa"? Didnt she already being assigned to a immigration visa in Dec 2010? or do u mean when she receives the interview approval notice? or when she landed in the US? i just want to find out what's the exact time that i can file i485

No. A visa number was made available for her when her priority date became current. This means that USCIS determined that the petitioner was eligible to petition for her, and that she was eligible to apply for a visa based on that petition. She doesn't get the visa until a consular officer approves it. Until then, your ability to derive any sort of status depends on your mother. If her visa ends up being denied at the consulate then you can't derive status from her petition.

If you were applying for a visa then you couldn't apply until she applies, and you couldn't be approved unless she's approved. If you're applying to adjust status (which is legally the same thing as being admitted for immigrant status) then you must wait until she's been admitted for immigrant status. You can't receive any immigration benefit before she receives the same benefit. You have to apply for that benefit at the same time she applies for it, or after she's been approved for it. You have to wait until she arrives in the US. The I-485 instructions describe your situation this way:

Based on being the spouse or child (derivative) - at the time another adjustment applicant (principal) files to adjust status or at the time a person is granted permanent resident status in an immigrant category that allows derivative status for spouses and children.

Your mom is granted permanent resident status when she enters the US with her immigrant visa. Once she has permanent resident status then you can apply for the same status as a derivative.

[qyz891023 0]

No. A visa number was made available for her when her priority date became current. This means that USCIS determined that the petitioner was eligible to petition for her, and that she was eligible to apply for a visa based on that petition. She doesn't get the visa until a consular officer approves it. Until then, your ability to derive any sort of status depends on your mother. If her visa ends up being denied at the consulate then you can't derive status from her petition.

If you were applying for a visa then you couldn't apply until she applies, and you couldn't be approved unless she's approved. If you're applying to adjust status (which is legally the same thing as being admitted for immigrant status) then you must wait until she's been admitted for immigrant status. You can't receive any immigration benefit before she receives the same benefit. You have to apply for that benefit at the same time she applies for it, or after she's been approved for it. You have to wait until she arrives in the US. The I-485 instructions describe your situation this way:

Based on being the spouse or child (derivative) - at the time another adjustment applicant (principal) files to adjust status or at the time a person is granted permanent resident status in an immigrant category that allows derivative status for spouses and children.

Your mom is granted permanent resident status when she enters the US with her immigrant visa. Once she has permanent resident status then you can apply for the same status as a derivative.

Good explanation Jim now that makes more sense to me. I guess now my best bet is to get an H1b ASAP and go home for the interview, where i have a greater chance to get approved than stay in the US and apply for i485 when my mom gets her green card because I have talked to some lawyers and I'm pretty sure my CSPA age was locked in at Dec 2010, plus if i dont pass the interview, i can still come back on H1b visa. Correct me if am wrong.

Thanks again for your help

[qyz891023 0]

Hi guys, i have talked to my lawyer about the derivative status, but he told me that he did not think i was the derivative on this case, in other words, NVC made a mistake by passing the case on to the consulate with me as a derivative on it.

here is the email that he sent me

Michael,

Apparently there is no consensus even among the professionals but few colleagues chimed in supporting my position that since the marriage was after you turned 18 you are not considered a child.

any idea on this? agree or disagree?

[Jojo92122 1,924]

Hi guys, i have talked to my lawyer about the derivative status, but he told me that he did not think i was the derivative on this case, in other words, NVC made a mistake by passing the case on to the consulate with me as a derivative on it.

here is the email that he sent me

Michael,

Apparently there is no consensus even among the professionals but few colleagues chimed in supporting my position that since the marriage was after you turned 18 you are not considered a child.

any idea on this? agree or disagree?

You are mixing things up.

The NVC did not make a mistake. Your lawyer doesn't understand derivative beneficiaries in the F2a category.

You are a derivative based on your relationship to your mother on the petition for her in the F2a family preference category. Your relationship to your LPR stepfather is irrelevant.

Your LPR stepfather cannot petition directly for you because he married your mother after you turned 18 years old. This is why the I-130 he filed for you was denied.

The petition he filed for your mother is in the F2a family preference category - the main relationship is between her and your stepfather. Based on your relationship to your mother, you qualify as a derivative beneficiary as your CSPA age is under 21. Your derivative beneficiary status does not require a direct relationship between you and your LPR stepfather - the relevant relationships are 1) between your mother and LPR stepfather and 2) between you and your mother. Your relationship to your stepfather is irrelevant.

Edited November 11, 2011 by Jojo92122

[Jojo92122 1,924]

Get a new lawyer. Your lawyer is ignorant. He does not understand the immigration laws concerning derivative beneficiaries.

If he doesn't understand the basics of who is a derivative beneficiary, he is not going to understand CSPA and how retrogression affects you. This is much more complicated than determining who is a derivative beneficiary.

Edited November 11, 2011 by Jojo92122

[Jojo92122 1,924]

To add one more comment:

A derivative beneficiary derives his/her status based on his/her relationship to the beneficiary. The derivative beneficiary does not derive any benefits from a relationship to the petitioner.

For example; in the F4 category where a US citizen petitions for a brother, the petitioner is the US citizen and the brother is the principal beneficiary. The brother's wife is a derivative beneficiary. Notice that there is no legal relationship between the US citizen and his sister-in-law. That relationship is irrelevant. It is the principal beneficiary's relationship to the derivative that is relevant.

Similarly, the relevant relationship is between the principal beneficiary and the derivative beneficiary in an F2a case. The relationship between the petitioner and the derivative beneficiary is irrelevant.

[qyz891023 0]

ehh looks like $200 goes down to the toilet haha. immigration lawyers in my area CT are pretty much the same, unless i go to NYC. Jojo are you a lawyer?

[qyz891023 0]

also, he said that if i got my H1b starting october next year, and filed a I485 after october 1st based on my mom(principle beneficiary) green card, the denial of i485 will take away my H1b status given the opinion that he did not think i was the derivative on this case, meaning i will be out of status if my i485 is denied, is this true?

[JimVaPhuong 4,863]

I agree with the others. The attorney is wrong. My step-kids obtained derivative K2 visas even though one of them was 19, and I hadn't even married their mother yet. Derivative status is based on the relationship between the derivative and the primary beneficiary. It has nothing to do with their relationship to the petitioner.

[qyz891023 0]

I agree with the others. The attorney is wrong. My step-kids obtained derivative K2 visas even though one of them was 19, and I hadn't even married their mother yet. Derivative status is based on the relationship between the derivative and the primary beneficiary. It has nothing to do with their relationship to the petitioner.

ok what about the statement he made on h1b and i485 status, is that wrong too?

[qyz891023 0]

does anyone know the answer to my last question?