My son was a dependent on my spouse when he applied for an H1-B. His case was denied. My son and I applied for an I-140 immediately with an I-485, with travel parole and EAD, on January 31, 2022, to keep my son’s case legal. We both had our fingerprints taken in March 2022. However, our I-485 is still pending for us both, and we have received the EAD and travel parole. We requested to interfile for my husband’s approved I-140 and got an RFE response for my I-140. When I received the NOID, I decided to withdraw my I-140. If my husband sponsors my son and me through the I-130, will my son qualify for an I-485, given he does not have status but a pending I-485? He entered the U.S. legally at three years old and is now 16. I am on H1-B, my husband is LPR, and I have daughters who are U.S. citizens (20 and 11 years old).
Answers
Bernard P Wolfsdorf
Find EB-5 Visa Lawyers: Immigration Attorneys DirectoryWhen you withdrew the I-140, the basis to support your I-485 fell, and sponsoring via a permanent resident does not immediately help because the category is backlogged, and family immigration F2A petitions do not allow even one day out of status. Encourage your husband to naturalize as soon as possible then you and your child become immediate relatives and status is not as relevant.
Lynne Feldman
Find EB-5 Visa Lawyers: Immigration Attorneys DirectoryCan’t file I-130 without being in status every day but may be able to transfer pending I-485 unless the I-140 is already withdrawn.
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