Derivative's case is suspended due to retrogression (primary got GC).

[ryand]

Hello

My green card was approved on August 2nd. I was EB2 India with Priority Date September 2012.

Last year, I had filed AOS application together with my wife, and medicals were submitted. Hence mine was approved without any RFE.

However, my wife's case remained pending for a month showing the status "Case Was Transferred And A New Office Has Jurisdiction".


So we contacted USCIS on 2nd September and they said they would check my wife's case and get back within a month by email.


Today her case status changed to Case Remains Pending

She also got an email from USCIS saying:

The status of this service request is:
Due to retrogression, your case must be held in abeyance until a visa once again becomes available. Therefore, yourcase has been forwarded to the National Benefit Center pending Visa Availability.


How they retrogressed her case when retrogression starts from October, so there are still 3 weeks in this month, should not they try to adjust her status (as my priority date is still current) and as per their website, they make every effort to adjudicate principle and derivate family member at the same time?

Does getting her Visa number has anything to do with my priority date now? I already got GC, still, they will wait until my priority date becomes current in the next Visa year? Or getting her a Visa number has nothing to do with priority date movement?

Is there any possibility we can get VISA number for her before October 1, and anything can be done to get it sooner?

Thanks

[newacct]

I am not sure why your case got approved and hers hasn't yet, but two AOS cases don't necessarily proceed at the same speed. Just because the chart shows that a visa number is available this month, doesn't necessarily mean that it will be approved this month. The speed of approval and the assignment of visa numbers is not under your control. I am not familiar with the situation, but it's possible that, for example, there might be no visa numbers left in the fiscal year.

Derivative beneficiaries have the same category and priority date as the principal beneficiary. Derivative beneficiaries can only be approved for AOS or an immigrant visa in a month where a visa number is available for the petition's category and priority date. Therefore, if her AOS doesn't get approved this month, and if the visa bulletin retrogresses in October so that a visa number is no longer available for your category and priority date, then yes, it does mean that her AOS cannot be approved in October (even though you already have a GC), and her AOS can only be approved in a future month when a visa number is available for your category and priority date again.

Since she has a pending AOS, she can continue to stay in the US for as long as it's pending, and she can work and/or travel if she has EAD and AP.

[shiva_82]

Hello

My green card was approved on August 2nd. I was EB2 India with Priority Date September 2012.

Last year, I had filed AOS application together with my wife, and medicals were submitted. Hence mine was approved without any RFE.

However, my wife's case remained pending for a month showing the status "Case Was Transferred And A New Office Has Jurisdiction".


So we contacted USCIS on 2nd September and they said they would check my wife's case and get back within a month by email.


Today her case status changed to Case Remains Pending

She also got an email from USCIS saying:

The status of this service request is:
Due to retrogression, your case must be held in abeyance until a visa once again becomes available. Therefore, yourcase has been forwarded to the National Benefit Center pending Visa Availability.


How they retrogressed her case when retrogression starts from October, so there are still 3 weeks in this month, should not they try to adjust her status (as my priority date is still current) and as per their website, they make every effort to adjudicate principle and derivate family member at the same time?

Does getting her Visa number has anything to do with my priority date now? I already got GC, still, they will wait until my priority date becomes current in the next Visa year? Or getting her a Visa number has nothing to do with priority date movement?

Is there any possibility we can get VISA number for her before October 1, and anything can be done to get it sooner?

Thanks

I believe USCIS has used up all the available visas for this year for EB1, EB2 & EB3. While it's unfortunate, you have to wait until the dates become current again before GC is issued for your derivative applicants.

One possible alternative option is for you to apply for your wife and kid in F2A category. It would mean shelling out money again for new applications but that's your choice. F2A category is current. I'm not a lawyer and don't have much knowledge on these so I suggest you consult an attorney to check your options.

[ryand]

Thanks newacct, Thank you for your reply.

You are right, I contacted my attorney and she said no Visa number in any category is available in this fiscal year.

As per why my spouse's case is not approved yet, actually, there is no reason, no RFE or nothing. All of our forms were complete including medicals and correct birth certificates etc. While they processed mine and my daughter's together, both me and my daughter got our Green card approved on 2nd August... But due to their overlook or whatever reason, they did not process my wife's case at the same time (wild speculation: my wife uses a different last name than me and my daughter).

I was hoping she becomes eligible to get a VISA number as soon as Visa will be available in EB2 category, but I was not hoping she still needs to wait until my priority date become current. As I already got GC, why they should look into my priority date? Rather they should consider her for giving Visa number as soon as Visas are available, irrespective of EB2 priority date is moved or not. But you said they will still consider my priority date, and as EB2 priority date moved back 6 months behind my priority date, then it will be again an indefinite waiting for a single family member to get her green card, this rule is really frustrating.

I guess nothing can be done rather than waiting then .. Only thing probably I can do is ask the attorney to see if they help expedite her EAD and AP applications because those are still pending (USCIS website still shows "case received status", that means no progress). All of our EAD/AP applications were also filed during the AOS filing last year, me and my daughter directly got green card (and our EAD/AP applications are closed), but seems like my wife now needs those soon in order to continue traveling and working.

Thanks

[ryand]

Thanks @shiva_82,

Yes, seems like as you said it is an unfortunate rule that my spouse has to wait till the EB2 priority date will move again in order for further consideration, such an odd rule, but it is what it is then.

Thanks.

Thanks for letting me know about F2A, I will check with the attorney: The extra expense of filing F2A will worth anything, or better to just wait (assuming she will get her EAD and AP soon because they suspended her case now, at least showing that we can request expediting to get EAD/AP)