How can I file a primary I-485 and remain a dependent on another I-485 at the same time?

Question

My husband also filed an I-485 last year, on which I am his dependent, based on the approval of his I-140 (he filed the application individually instead of being sponsored by an employer). Now, I would like to file my own I-485 based on my I-140 approval. I am a faculty member at a United States college and my I-140 was just approved through my college’s petition. However, I was told by the college’s attorney that I can only have one I-485 application processing at a time. This information is inconsistent from what we have heard. Our understanding is that, yes, each applicant can only have a primary I-485 application—but, on my husband’s I-485, I am merely listed as a dependent. Is the college’s lawyer correct?

Fredrick W Voigtmann · Answer

Normally, a person can only have one I-485 pending, but yours is a special situation in which you have multiple avenues available for your adjustment of status. USCIS does not have very clear guidance on this issue, so an attorney could argue in good faith that you should be allowed to have two I-485s pending, one as a dependent and one as a principal applicant/beneficiary. USCIS may require you withdraw one before it will adjudicate your case, which means you will lose the filing fee. On the other hand, if USCIS rejects or returns your I-485, you will receive your filing fee check back as well.

Shannon M Shepherd · Answer

This question does not seem to be related to EB-5 investment visas, but I can still answer it. The college is incorrect. You can have your own I-485 on which you are the primary applicant, and you can also be listed as a derivative on your spouse 's I-485. Many applicants do this so that they can get their green cards through whichever application becomes current first.

Barbara Suri · Answer

My understanding is that one can file as many applications for which he qualifies for and can afford. The exception is that you may not, for example, file for adjustment of status based on a petition and file for Consulate processing based on that same petition at the same time.

Charles Foster · Answer

Normally, if your husband would have filed an I-485 Application for Adjustment of Status and you are his dependent, you would have contemporaneously filed an Application for Adjustment of Status on Form I-485 as his dependent. The question is: who filed first?  If your husband has already filed an I-485 application and you filed contemporaneously with him, then there may not be any advantage to filing a new Application for Adjustment of Status. If, as you suggest, you did not file your own Application for Adjustment of Status as a dependent of your husband, then yes, you would be eligible to file a new Application for Adjustment of Status based upon your own approved Employer I-140 petition.

BoBi Ahn · Answer

The attorney is correct. You can only have one I-485 application filed/pending - irrespective of what category under which you are filed. You have the option to withdraw your pending I-485 based on your spouse's I-140 if you wish to pursue/file an I-485 based on your own I-140, but you may not have two I-485s pending/filed.

Jinhee Wilde · Answer

You cannot have two adjustments of status at the same time. If you wish to give up the adjustment of status based on the derivative status and then file your own as a primary, you could do so. However, why would you want to expend another filing fees plus attorney fees to prepare and file your own, which will put you in the back of the line for adjudication when your previously filed application will get you a green card faster and save additional cost? A green card obtained as a derivative is no different than one earned as a primary applicant unless your husband's I-140 was somehow defective and may be revoked.

Bernard P Wolfsdorf · Answer

The advice the university 's lawyer has given is accurate but it appears the USCIS is moving away from the prior guidance which preferred only a single I-485 to be pending. It appears it is now possible to have more than one adjustment application pending. It possible that USCIS will require that one be withdrawn before issuing an approval.

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How can I file a primary I-485 and remain a dependent on another I-485 at the same time?

Answers

Fredrick W Voigtmann

Shannon M Shepherd

Barbara Suri

Charles Foster

BoBi Ahn

Jinhee Wilde

Bernard P Wolfsdorf