H4 to Green Card Questions

[vinoddas]

Hi,
I got married in 2008, but my wife came with me to the US in Dec 2009. I got married while my I485 was pending due to priority date backlog. I understand that I can add her to my I485 application when my priority dates are current (Jan 17 06). My questions are:

1. How many days do I have to file after my priority dates are current (in case I do get my green card in the interim)?
2. She being a non-Australian born Australian citizen can legally work in this country on a special E3 visa. But I am not sure whether she can be added on my green card application while working on the E3 visa? If thats not possible, the only 2 ways she can work and be added o GC is to apply for H1b (probably not available till October '10) or wait till my priority date is current, file for I485 and EAD and wait for that?

Thanks a lot in advance for any help regarding this.

-Vinod

[Ann Ruben]

Hi Vinod,

As a practical matter, you probably want to file your wife's I-485 application as soon as possible after the first day of the month in which your PD becomes current. As you know from experience, PD's can and do retrogress dramatically with little or no notice.

If your wife is in H4 status on the date that your GC is approve, she will automatically fall out of status. She can remain out of status for up to 180 days without losing eligibility to file for AOS, but if the PD retrogresses before she files, she has to wait and hope that your PD becomes current before 180 days have passed.

If your wife changes status to E-3 she can still file her I-485 when your PD becomes current. But,
E-3 status, unlike H-1 status, requires non-immigrant intent. So, theoretically, if your wife changes to E-3 status and then files the I-485 within 60 days, an allegation of immigration fraud could be made and possibly result in denial of her I-485.

Ann