AC21 portability for derivative AOS ? (Primary applicant has greencard)

[sreecha]

Hi,
I have a greencard but my wife's 485 (that was interfiled along with mine) is still pending.

- My priroty date was Nov 2003 (my greencard application was filed in EB3)
- I filed for my I-485 in Dec '04 and I was still Unmarried at that time. EB3 cutoff dates retrogressed in Jan '05
- I got married in 2006 but EB3 cutoff dates were still retrogressed and I could not interfile for my wife's I-485
(Note that I was on H1B visa at this time- so my wife came to US on H4)
- I changed employers and my new employer files for AOS portability (since my I-485 was pending for more than 180 days) AND H1B tranfer (and my wife's new H4)
- In July 2007 my priroty date became current and I quickly interfiled for my Wife's 485 - but we were not fast enough.. i.e, The EB3 cutoff dates retrogressed again in a month (Aug 2007) -
- To make matters interesting, I got my green card during this one month window! (last week of July 2007) but my wife didn't :(.
- However, since her I-485 was applied, she has gotten EAD and AP (and kept renewing them since 2007) till now. My current employer's immigration attornery said this is perfectly legal (although uncommon).

Now my Actual question:
I am considering switching employers now. Since I have a green card, I should be good to go BUT I don't knwo what will be the status of my wife's pending 485 application.

- Should my new employer file for her AC21 AOS portabilty ? (does it even make sense ? - since her's is a derivative 485 application and hence no I-140)

[a_yaja]

Hi,
I have a greencard but my wife's 485 (that was interfiled along with mine) is still pending.

- My priroty date was Nov 2003 (my greencard application was filed in EB3)
- I filed for my I-485 in Dec '04 and I was still Unmarried at that time. EB3 cutoff dates retrogressed in Jan '05
- I got married in 2006 but EB3 cutoff dates were still retrogressed and I could not interfile for my wife's I-485
(Note that I was on H1B visa at this time- so my wife came to US on H4)
- I changed employers and my new employer files for AOS portability (since my I-485 was pending for more than 180 days) AND H1B tranfer (and my wife's new H4)
- In July 2007 my priroty date became current and I quickly interfiled for my Wife's 485 - but we were not fast enough.. i.e, The EB3 cutoff dates retrogressed again in a month (Aug 2007) -
- To make matters interesting, I got my green card during this one month window! (last week of July 2007) but my wife didn't :(.
- However, since her I-485 was applied, she has gotten EAD and AP (and kept renewing them since 2007) till now. My current employer's immigration attornery said this is perfectly legal (although uncommon).

Now my Actual question:
I am considering switching employers now. Since I have a green card, I should be good to go BUT I don't knwo what will be the status of my wife's pending 485 application.

- Should my new employer file for her AC21 AOS portabilty ? (does it even make sense ? - since her's is a derivative 485 application and hence no I-140)

AC21 is only for the primary applicant. Since you already have your green card, AC21 does not enter the picture. Also remember, even if your GC application was pending, the AC21 only applies to you (primary applicant) - your wife's 485 is solely based on the validity of your 485 application (which it is since it was filed in a timely manner before you got your GC).

Also - it might be faster for you to get your citizenship (since you are eligible to apply as early as next month - remember that you can apply for naturalization 90 days before your 5th yr GC anniversary) and port your wife's application to family based (just a thought - you will have to talk to an attorney).