Q: Can I file I-485 if wife's EB3 is approved first?
My wife’s EB3 I-485 application, based on employment, has been pending for the past four months. She recently received an RFE regarding a birth certificate issue, which has been resolved. We got married recently, and I am planning to file my own I-485 as a derivative adjustment applicant. I am concerned about whether I can still submit my I-485 later, without needing a separate I-130, if her I-485 is approved before I file mine, considering we were married at the time of her approval.
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A:
You can still file your I-485 as a derivative applicant even if your wife's EB3-based adjustment application is approved before you submit yours, provided you were legally married before her approval date. USCIS recognizes your eligibility as a derivative beneficiary based on your marital status at the time your spouse's I-485 is approved. This means your eligibility is preserved, and you wouldn't need to file a separate I-130 petition.
However, it's crucial to act quickly and not delay filing your application too long after her approval. USCIS typically expects derivative applications to be submitted promptly, ideally while the primary applicant's adjustment is still pending, but the key factor is the marriage occurring before the primary applicant's approval date.
To avoid complications, include clear evidence of your marriage date with your filing, along with documentation proving your wife's approved status. Filing promptly and clearly establishing your relationship will ensure USCIS recognizes your eligibility as her derivative. Be proactive and attentive to avoid unnecessary delays or additional scrutiny.
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