Follow to Join question: Unique case

[milindc]

My wife is currently on I-485 AoS/Advance Parole/EAD based on my I-485 AoS (I'm primary with EB3). She plans to stay in India for extended time since she is starting a company in India. And due to urgent circumstances related to renewal of AP, she is planning to abandon her I-485 AoS. We are willing to stay separately for couple of years with me travelling back and forth. We do understand that she can't travel to USA until my I-485 is approved.

Question is whether she will be eligible for 'Follow-to-join' when I get my I-485 approved and whether I can apply for Form I-824

Thanks for your help in advance.

[vdlrao]

Method 1: Yes you can apply form I-824 Action on Approved Application once after/before your GC is approved. If you apply I-824 before I-485 decission, and by the time I-824 been processed(It usually takes from 4 months to 7 months depending on the service center), and your I-485 is still in pending status, then there may be a chance of rejection. But if you apply soon after the I-485 decission then there would not be a problem.

This method would take about 7 months to about 1 year end to end, from the time you applied I-824.

Method 2: You can do another thing also: You can apply for I-824 soon after your I-485 decission and go to the local US consulate in your home country with the following documents:

1) Original I-824 Receipt Notice
2) Your Green Card
3) Marriage certificate.

Then they initiate the process there and it would take about 4 months end to end, from the time you applied I-824.

[milindc]

vdlrao,
Thanks. Does this mean that she abandoning her I-485 based AoS process will not impact the later 'Follow to join' eligibility ?

[vdlrao]

In your case the principal applicant is you and your wife is a derivative. Action on Following to Join is for the derivatives. So it's fine as far as I know.

If you need 100% confirmation, may ask a Lawyer.

[vdlrao]

The derivatives can abondon AOS apply in CP and vice versa, depending on their visa flexibilities.

[Svee]

H Vdlrao,

Do you have any links/Info that provide more details on how to change derivates to CP?
As a EB3 candidate, my file would take at least 3-5 years( guess) to be picked up. we are no more on a H1B. Can the derivative move the same to CP and wait there for processing? Can they avail of AP( just in case) during the wait time ?
TIA

[vdlrao]

In CP(Consular Peocessing) there's no AP(Advance Parole). AP is only for people who applied for (I 485). Your derivatives can move from AOS to CP by filing I-824 form, Action on Approved Application. Also vise versa depending on their visa.

[milindc]

In your case the principal applicant is you and your wife is a derivative. Action on Following to Join is for the derivatives. So it's fine as far as I know.

If you need 100% confirmation, may ask a Lawyer.

vdlrao,
Thanks for your help. I did a paid consultation with an attorney and he concurs that my wife can abandon her I-485 AoS and will be eligible for 'follow-to-join'. His concern was that she might not be able to travel to US until the CP is done. We need to be prepared for the fact that she might not get tourist visa at-least until she has documentation from USCIS that her I-485 AoS is denied.
The attorney's recommendation was to let USCIS issue denial and not take proactive steps on that part.

[vdlrao]

vdlrao,
Thanks for your help. I did a paid consultation with an attorney and he concurs that my wife can abandon her I-485 AoS and will be eligible for 'follow-to-join'. His concern was that she might not be able to travel to US until the CP is done. We need to be prepared for the fact that she might not get tourist visa at-least until she has documentation from USCIS that her I-485 AoS is denied.
The attorney's recommendation was to let USCIS issue denial and not take proactive steps on that part.

The derivatives could be eligible to get dual intent visa like H4, L2 while they are waiting for their GC in CP(Consular Processing). But not eligible for B1/B2 or F1/F2 visas. You can change to H1B any time while you are on EAD. So the dependents who are waiting for GC in CP are eligible to apply for H4. But remember this is a lenthy and cumbersome process.

[vdlrao]

The derivatives could be eligible to get dual intent visa like H4, L2 while they are waiting for their GC in CP(Consular Processing). But not eligible for B1/B2 or F1/F2 visas if they have their immigration petition pending. You can change to H1B any time while you are on EAD. So the dependents who are waiting for GC in CP are eligible to apply for H4. But remember this is a lenthy and cumbersome process.