My lawyer just realized that I am not eligible as a derivative beneficiary of my husband's 245i

[Sharleen88 0]

My lawyer just realized that I am not eligible to file independently as a derivative beneficiary of my husband's 245i after receiving a RFE. He overlooked that our relationship should have been established on or before April 01, 2001. The problem is we got married August, 2001. My lawyer said that we have a chance of getting denied. Please let me know your thoughts on this.

He responded to the RFE last July 07, 2015 and didn't get any response yet.

[aleful 1,905]

hi

who filed for him, and what was the rfe about?

it depends on the petition, a lot of beneficiaries marry during the process, but it depends on the petitioner,

we need more information on the original petition under the 245i law

Edited August 17, 2015 by aleful

[Boiler 43,429]

Sounds right, your husband would be able to petition you once he has a GC.

[Sharleen88 0]

The petitioner is my employer and the RFE is asking for more evidence that the applicant is the beneficiary of an approved 245i.

My husband's family was petitioned by his uncle when he was still a child but was already over aged when the petition got approved. But my lawyer just realized that I cannot file as an independent beneficiary since our marriage took place after April 01, 2001 which was the deadline to file as an independent derivative beneficiary.

[Sharleen88 0]

Thanks guys for taking the time to answer my questions. I really appreciate it.

This is really devastating for us, I just want to know if there is still hope in my case. Please help. Thanks so much in advance!

[Boiler 43,429]

Probably not that many people around well experienced in 245i, if you do not feel comfortable with your lawyer no harm in have a few more consultations.

[newacct 688]

My lawyer just realized that I am not eligible to file independently as a derivative beneficiary of my husband's 245i after receiving a RFE. He overlooked that our relationship should have been established on or before April 01, 2001. The problem is we got married August, 2001. My lawyer said that we have a chance of getting denied. Please let me know your thoughts on this.

He responded to the RFE last July 07, 2015 and didn't get any response yet.

I think there might be some confusion. There are two different things -- grandfathering under 245(i), and being able to adjust status under 245(i).

If your relationship was established before 2001, then both your husband and you (as a derivative of your husband at the time of 2001) would be separately grandfathered under 245(i). That means even if you got divorced, you can later file for AOS under 245(i) if you later have another petition that is current. And in fact, any new husband you have now and any new children you have now would also be able to adjust under 245(i) as your derivative.

Your relation was established after 2001. That means you are not grandfathered. However, your husband is grandfathered. That means, as his spouse now, you can adjust status as his derivative under 245(i) if he qualifies to adjust status under 245(i).

[Sharleen88 0]

You are right. I am not grandfathered. So there is really no hope in my case. We are probably waiting for a denial then:-(.

[Boiler 43,429]

I would have thought so, wonder why the Lawyer did not pick it up?

[Sharleen88 0]

He was trying to make excuses at first but later on accepted that it was his fault that he overlooked it. This was a very expensive mistake.

[Boiler 43,429]

Hopefully he will refund at least some of the fees.

[Sharleen88 0]

He won't but he said that I don't have to pay the attorney's fees once we refile under my husband's 245i. He also said that USCIS might just have to approve it but denial is most likely. I'm praying for a miracle. Hate to go through this again.

[newacct 688]

You are right. I am not grandfathered. So there is really no hope in my case. We are probably waiting for a denial then:-(.

As I wrote above, you are not grandfathered, but you qualify to adjust status under 245(i) as the derivative of your spouse who is grandfathered under 245(i).

[Sharleen88 0]

Hi newacct,

Yes, that is the plan but what I mean is that all the hardwork, time (3years of waiting) & money will be wasted if my case will be denied -and we have to do it all over again. This really sucks.

[newacct 688]

Hi newacct,

Yes, that is the plan but what I mean is that all the hardwork, time (3years of waiting) & money will be wasted if my case will be denied -and we have to do it all over again. This really sucks.

Hmm, I read the stuff again and I think I see the problem. It seems that the problem in your case is that the current principal applicant is you, not your husband; but it is only your husband who has unlimited grandfathering. Since you don't have unlimited grandfathering, you can only use 245(i) as derivative of your husband. If your husband were the principal applicant and you are the derivative now, then both of you would be protected by 245(i) and can adjust status now. But since you are the principal applicant, you cannot take advantage of your husband's grandfathering, and thus neither of you can adjust. It seems that the only way is for your husband to get petitioned, and then both of you can adjust.

By the way, you could never have gotten unlimited grandfathering through your husband because he was already the derivative (child) on the original petition. You could not have gotten derivative status by marrying him anyway.