Question about derivative status

[qyz891023 0]

guys i found the answer thanks anyway for the help

Although an EAD has many advantages over an H1B visa, it has one drawback: it expires the minute your i-485 is denied. An H-1B visa, on the other hand, allows you to continue working legally until the remainder of its validity period, leaving you precious time to react or seek other solutions

[qyz891023 0]

so we got an interview date via email, which also says

Please use the following link to access the necessary forms for cases named below: http://guangzhou.usembassy-china.org.cn/forms_and_packets.htm. Please download and review all the forms for this case’s visa category. Fiancé(e) visa applicants should download K-1/K-2 Appointment Packet (“Packet 4”); K3/K4 visa applicants should download K-3/K-4 Appointment Packet (“Packet 4”); all other visa applicants should download IV Appointment Packet (“Packet 4”). EB5 (C5, I5, T5, R5) applicants should also bring proof that their investment funds have been transferred to an escrow account or made available to the U.S. investment project.

which one should I use for a spouse of a green card holder???

[qyz891023 0]

new question

so my mom got her green card, and she filed i485 for me based on "me being the child/derivative at the time the applicant files to adjust status or is granted permanent resident status in an immigrant category that allows derivative status for spouse and child", according to the instruction.

but the i485 got denied because they were "unable to determine the basis for filing the i485", and they asked me to resubmit the i485 with i130 or i797 approval notice.

my question is that there is no i130 or i797 being filed or approved on my behalf, i was listed under my mom's i130 the whole time, so should i submit my i485 with her i130 i797 approval notice and her green card???

which i did at the first time but obviously they did not see it haha.

any suggestions

thanks

[aaron2020 11,651]

new question

so my mom got her green card, and she filed i485 for me based on "me being the child/derivative at the time the applicant files to adjust status or is granted permanent resident status in an immigrant category that allows derivative status for spouse and child", according to the instruction.

but the i485 got denied because they were "unable to determine the basis for filing the i485", and they asked me to resubmit the i485 with i130 or i797 approval notice.

my question is that there is no i130 or i797 being filed or approved on my behalf, i was listed under my mom's i130 the whole time, so should i submit my i485 with her i130 i797 approval notice and her green card???

which i did at the first time but obviously they did not see it haha.

any suggestions

thanks

Edited June 28, 2012 by aaron2020

[JimVaPhuong 4,863]

new question

so my mom got her green card, and she filed i485 for me based on "me being the child/derivative at the time the applicant files to adjust status or is granted permanent resident status in an immigrant category that allows derivative status for spouse and child", according to the instruction.

but the i485 got denied because they were "unable to determine the basis for filing the i485", and they asked me to resubmit the i485 with i130 or i797 approval notice.

my question is that there is no i130 or i797 being filed or approved on my behalf, i was listed under my mom's i130 the whole time, so should i submit my i485 with her i130 i797 approval notice and her green card???

which i did at the first time but obviously they did not see it haha.

any suggestions

thanks

On the I-485, which box was checked in part 2? It should have been box "b".

You should include a copy of the I-797 approval notice for the petition your step-father filed for your mother, a copy of her green card, and a copy of your birth certificate (and translation) establishing that you are her biological child. Make it clear on the copies what these documents are. For example, "Petition Approval Notice for Primary Beneficiary", "I-551 'Green Card' For Primary Beneficiary", "Birth Certificate for Derivative Beneficiary (I-485 Applicant)".

You will also need to submit evidence that you entered with a non-immigrant visa, and your non-immigrant status has not expired. Most people have an I-94 for this.

You also need to include all of the other documents and evidence required for adjustment of status, including a G-325A, passport photos, an affidavit of support and supporting evidence, blah blah blah. You can check the guides for adjustment of status to get a general idea what sort of supporting documents are required (see the guides link at the top of the page). There are separate guides for spouses adjusting after entering with a non-immigrant visa, K1 and K3 visa holders, etc. There isn't a specific guide for your circumstances, though.

I suggest you include a cover letter and explain, in detail, on what basis you're adjusting status, a brief history of what has happened so far (petition, NVC stage, retrogression, mom's visa application and approval, etc.), and a table of contents listing the documents and evidence you've included in your package. Don't make the immigration officer try to figure out what you're trying to do. Spell it out for them.

[qyz891023 0]

Thanks for your help Jim, I'm working on the cover letter and a table of contents

do i need to include a copy of the originally filed i-130 with my name listed on it as an dependent? or just the i-797

what should i include to address my age-out since I'm over 21 now, i was 19 when her i-130 was filed. i do have a letter from NVC saying I was protected under CSPA rules but do i need any other explanation?

thanks

[JimVaPhuong 4,863]

Thanks for your help Jim, I'm working on the cover letter and a table of contents

do i need to include a copy of the originally filed i-130 with my name listed on it as an dependent? or just the i-797

what should i include to address my age-out since I'm over 21 now, i was 19 when her i-130 was filed. i do have a letter from NVC saying I was protected under CSPA rules but do i need any other explanation?

thanks

Just the I-797. With the case number on that letter they can pull up any documents they need on their computer.

Of course, you should include a copy of that letter from the NVC. Ultimately, it will be up to the IO to determine if you've aged out. Department of State and USCIS don't have the same rules for this. USCIS generally considers that you have satisfied the "sought to acquire permanent resident status" requirement when your I-485 is properly filed. You have to convince them that you satisfied that requirement when you filed the DS-230 and paid the immigrant visa fees with NVC. The retrogression makes your case especially complicated because you have to try to persuade USCIS to play by Department of State rules.

[Darnell 8,478]

new question

so my mom got her green card, and she filed i485 for me based on "me being the child/derivative at the time the applicant files to adjust status or is granted permanent resident status in an immigrant category that allows derivative status for spouse and child", according to the instruction.

but the i485 got denied because they were "unable to determine the basis for filing the i485", and they asked me to resubmit the i485 with i130 or i797 approval notice.

my question is that there is no i130 or i797 being filed or approved on my behalf, i was listed under my mom's i130 the whole time, so should i submit my i485 with her i130 i797 approval notice and her green card???

which i did at the first time but obviously they did not see it haha.

any suggestions

thanks

you were listed on HER I-130. That's not enough to get you in any queue for immigrant visa processing, alas.

OTOH, IF your mom interviewed for a K-3 visa back at GUZ IV, you would have been able to interview as a K-4 derivative (maybe).

IMO, since you were over 18 when your Mom married, you don't qualify for her husband to file the I-130 for you (this may have been covered before, sorry if I'm repetitive) ..

At best, she can file an I-130 for you now that she has a green card, and you'll have to wait for the priority date to become current (2 to 3 years) after approval at USCIS before NVC will do any intake. (for visa processing)

You are still in USA with a student visa? If so, I suggest you keep going to school until your mother becomes a citizen, then file the I-130 and I-485 together for an adjustment of status. There's my two cents - there may still be other paths for you.

Good Luck !

[JimVaPhuong 4,863]

you were listed on HER I-130. That's not enough to get you in any queue for immigrant visa processing, alas.

OTOH, IF your mom interviewed for a K-3 visa back at GUZ IV, you would have been able to interview as a K-4 derivative (maybe).

IMO, since you were over 18 when your Mom married, you don't qualify for her husband to file the I-130 for you (this may have been covered before, sorry if I'm repetitive) ..

At best, she can file an I-130 for you now that she has a green card, and you'll have to wait for the priority date to become current (2 to 3 years) after approval at USCIS before NVC will do any intake. (for visa processing)

You are still in USA with a student visa? If so, I suggest you keep going to school until your mother becomes a citizen, then file the I-130 and I-485 together for an adjustment of status. There's my two cents - there may still be other paths for you.

Good Luck !

Read the rest of the thread. Her dad is an LPR, so her mom got an F2A, which allows for derivatives. Her petition was rightfully denied because the marriage took place after she was 18, but she was still eligible as a derivative of her mom's petition. She was still eligible under CSPA at the time the priority date originally became current, and she submitted a visa application and paid the fees before the cutoff date retrogressed. She should have locked in her age for CRBA at that time. However, she's not applying for the visa because she's currently in the US with valid non-immigrant status. She's applying for adjustment of status, instead. The big question is whether USCIS is going to recognize that her age was locked when she submitted her visa application to Department of State (she's got a letter from NVC confirming this), or are they going to apply the normal USCIS rules and consider only the date she submitted the I-485. If they do the latter then she's aged out, but she might still be able to return to China and apply for the visa.

This case is making my head spin.

[Darnell 8,478]

Jim - thanks for the clarity. Aiyo.

[qyz891023 0]

Jim thanks for you help, i wrote a letter basically told them what you said here and my I-485 application got accepted in July, and i have an interview at the end of Sep.

What kind of questions will be asked during interview to a derivative? any ideas? i googled it but there arent many people with similar experience like me.

thanks

i dont know why so soon though but it only took 2 months for them to schedule an interview for me instead of 7 months which is the national average for i485 Chicago lockbox

[qyz891023 0]

so i went to the interview and 2 days letter came the denial letter, reason as follows

section 101(b)(1) states a step child must not reach age of 18 at the time of marriage creating the status of stepchild occured

it is your contention that you qualify as the derivative child of your mother, based on her marriage to your step-father. The record provides when your mother and your step-father got married you were 19 years old.

so i dont know, according to some responses in this post, i should have been qualified as a derivative.

Now is it worth it to try to appeal it? should i find a good lawyer and have him write an explanation letter?

thanks

[JimVaPhuong 4,863]

so i went to the interview and 2 days letter came the denial letter, reason as follows

section 101(b)(1) states a step child must not reach age of 18 at the time of marriage creating the status of stepchild occured

it is your contention that you qualify as the derivative child of your mother, based on her marriage to your step-father. The record provides when your mother and your step-father got married you were 19 years old.

so i dont know, according to some responses in this post, i should have been qualified as a derivative.

Now is it worth it to try to appeal it? should i find a good lawyer and have him write an explanation letter?

thanks

Yes, get a lawyer. Your age when they married is irrelevant. You only needed to be her minor child to qualify as a derivative. You're NOT trying to qualify as his step-child. You're trying to qualify as your mother's minor unmarried child. It's your relationship to the primary beneficiary that makes you a derivative, and NOT your relationship to the petitioner. The IO is trying to apply immediate relative rules to a family preference case.

You have less than 30 days to file a motion to reopen. Hire a lawyer NOW.

[qyz891023 0]

haha it's probably gonna take me 30 days to find a lawyer that agrees with me. But do you know which section of the immigration law describes this rule?

[qyz891023 0]

in other words, is there a section/chapter in INA that describes what a derivative applicant is?