Questions regarding Derivative and changing a current petition and AOS application:

[stich310]

Person1 and person2 married early July 2004
Person2 subject to possible non-waiverable petition bar
Person 2 was inspected at entry in US Oct. 1996, never left
Person2 is eligible to adjust under section 245(i)
Person1 I-140 approved late July 2004 (after marriage with person2)
Person1 Adjusted in US
Person1 I-485 approved Feb. 2005
Person1 could not sponsor person2 due to DOMA
Person1 filed I-130 in 2017 and priority date is current
person2 filed I-485 in 2019 and interview is complete and result is pending additional review

Questions:
1) Is person2 considered a follow to join derivative under 9FAM502.1-1(C)(2)b(2) despite person1 having already adjusted?
2) Since no decision made on I-130 or I-485 yet, can I-130 be withdrawn on grounds person2 is a derivative and file an updated I-485 to change person2 from beneficiary to derivative?
3) Is person2 as a derivative still eligible to adjust under 245(i)?

[newacct]

Did person1 become a US citizen already? or is still a permanent resident? What do you mean by "Person2 subject to possible non-waiverable petition bar"? What is the reason why person2 doesn't want to adjust on the I-130?

[stich310]

Thank you for your questions. Person1 is still a LPR. It isn't that person2 does not want to adjust by petition. There is evidence in person2's file (obtained through FOIA) that USCIS coerced evidence against person2 and is further abusing its discretion in reviewing any petition (4th now, and each time denying for a different reason). Person2's latest petition, filed after a BIA decision on the 3rd petition, is still pending a decision, hence our question given the history.

[newacct]

Yes, Person2 should be able to AOS as a derivative beneficiary on Person1's I-140, assuming Person2 really is grandfathered under 245(i). There is no time limit for a derivative beneficiary to immigrate as long as the principal beneficiary is still a permanent resident, and a visa number is still available for the petition's category and priority date.

They wouldn't have to withdraw the I-130; one can be the beneficiary of multiple I-130s. I am not sure whether they need to withdraw the I-485.

[stich310]

Thank you for your response. Based on your response, we understand that it is not necessary to withdraw the I-130. Could person2 simply correct/update the I-485 and change from beneficiary to derivative? Should person2 just wait for a decision on the petition either approval or if NOID then make the change? USCIS has so far not disputed the validity of the 245(i) claim to date. Oddly though, they were the first to state that person2 is eligible to adjust under 245(i) when they approved the 3rd petition (I-130) back in 2013 which was later revoked.

[newacct]

You would need to file a new I-485 to adjust status based on a different petition.