Derivative Beneficiary Adjustment of Status Process HELP

[tuanphan21290 1]

Does anyone have experience to file Adjustment of Status for Derivative Beneficiary?

My dad married to my step-mother (US Citizens), and I am here as an F-1 student. My step-mother opened I-130 concurrently with I-485 for my dad, and I-485 for myself because I am qualified as a derivative beneficiary. I got I-485 receipts for both my dad and myself last week and just did my fingerprint appointment this morning. When got home, I receive REF for myself from USCIS asking me to provide my eligibility for filing I-485. They request to submit NOA for I-130, and receipt date must be either before or same time with I-485. They also said if I did not file I-130, I must consider withdraw my I-485. I thought as long as my name listed on my dad I-130, I should be eligible.

My question is:

Do I need a separate I-130 file on my behalf? If so, who should be a petitioner?

Since I did not file a separate I-130 for myself, can I withdraw and reapply I-485 with a letter explain my eligibility as derivative beneficiary?

Thank you so much!

[teeak 224]

Did your father marry before you turned 18?

[belinda63 3,039]

Only if your father married your mother prior to your 18th birthday can he file for you as a step-child. There is no derivative beneficiary for an immediate US relative. He should have (if you meet the requirements of a step-child) filed the I-130/I-485 concurrently as he did with your mother.

[aaron2020 11,651]

Derivative beneficiaries are no allowed when a USC files for a spouse.

Your USC stepmother can only file for you if you were under age 18 when she married your dad.

If you were over age 18 when your USC stepmother married your dad, then you are not eligible to adjust status.

[Boiler 45,661]

How old are you?

[Ryan H 3,812]

Moved from IR-1/CR-1 Process & Procedures to Adjustment of Status from Work, Student, & Tourist Visas forum.

[tuanphan21290 1]

How old are you?

I am 19, and they married right after I turned 18.

[belinda63 3,039]

Since your parents married after you turned 18 you do not qualify as a step-child of the USC. Your LPR parent must file a petition for you, I-130, and the wait is about 2 years although it varies.

[Boiler 45,661]

Since your parents married after you turned 18 you do not qualify as a step-child of the USC. Your LPR parent must file a petition for you, I-130, and the wait is about 2 years although it varies.

This

[tuanphan21290 1]

Since your parents married after you turned 18 you do not qualify as a step-child of the USC. Your LPR parent must file a petition for you, I-130, and the wait is about 2 years although it varies.

If I decide to withdraw my I-485 since I am not eligible, will I still be eligible to stay in the US under my F-1 Visa - I still keep my F-1 in status as of today? Thank you!

[newacct 688]

If I decide to withdraw my I-485 since I am not eligible, will I still be eligible to stay in the US under my F-1 Visa - I still keep my F-1 in status as of today? Thank you!

Yes, as long as you don't violate the terms of your F-1 status.

[tuanphan21290 1]

This is what I found from an attorney's website, I hope it is true:

EAD and Pending I-485 status

you use an EAD that is based on your pending I-485 application, your visa status may be affected. For this reason it is important to consult with an experienced attorney before using the EAD if the EAD is based on your pending Adjustment of Status application. A person who has filed for an I-485 and who uses an EAD will lose valid non-immigrant status. An F-1 student or H-1B visa holder who does this will be considered to be in I-485 pending status and out of F-1 or H-1B status.

If the I-485 is denied, then the applicant cannot remain in the U.S. and will have to leave. If, however, the applicant does not use the EAD, he/she will be able to retain his/her visa status and remain in the U.S. for the duration of his/her non-immigrant visa, even if the I-485 application is denied.

Examples:

An F-1 student applies for an I-485 adjustment of status and an EAD. He uses his EAD while the I-485 application is still being processed and while he is still going to school. Currently he is in I-485 pending status. If his I-485 application is denied, he must leave the US, even though he has not completed his studies.

If the F-1 student applies for an I-485 adjustment of status and an EAD and he uses the EAD while the I-485 is being processed, he is in I-485 pending status. If his I-485 application is approved, he will become a permanent resident of the U.S.

If the F-1 student applies for I-485 adjustment of status and an EAD, but does not use the EAD while the I-485 is being processed, his F-1 status is still valid and regardless of the decision pertaining to his I-485 application, he can remain in the U.S. to finish his studies. - See more at: http://www.hooyou.com/ead/ead-pi-485.html#sthash.aRMr3mw5.dpuf

[Jojo92122 1,924]

Did you use the EAD to work?

[tuanphan21290 1]

Did you use the EAD to work?

I have not. I just had my fingerprint on Thursday 10/15/15 and have not received an actual card yet.

[Hypnos 6,576]

If you exercised any benefits associated with your I-485, I-765, or I-131 (say you worked off-campus using your EAD as work authorisation, or departed the US and re-entered on AP, for example) then your F-1 status is gone.

If you did not exercise any benefits under your pending AoS then you can withdraw your I-485 and resume your F-1 status without issue, since you essentially never left it.