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kalahasti
06-19-2007, 11:45 PM
All,
I would appreciate an answer to my question:

-- I am yet to marry but am engaged.
-- Marriage may take place in a few months.
-- My LC and I-140 are approved.
-- App for I-485 is yet to be filed. PD is current.

If I file for I-485 under EB2 category NOW and get married a few months later when retrogression of visas begins, would it be possible for my spouse then to be able to file under my application for I-485? I am considering the possibility that my I-485 may be approved before she can file though she is on valid H4 visa in US.

Any answer is valued.

Thanks,
BK

kalahasti
06-20-2007, 12:31 AM
Can someone reply to my question?
Thanks a lot.

milind70
06-20-2007, 12:37 AM
All,
I would appreciate an answer to my question:

-- I am yet to marry but am engaged.
-- Marriage may take place in a few months.
-- My LC and I-140 are approved.
-- App for I-485 is yet to be filed. PD is current.

If I file for I-485 under EB2 category NOW and get married a few months later when retrogression of visas begins, would it be possible for my spouse then to be able to file under my application for I-485? I am considering the possibility that my I-485 may be approved before she can file though she is on valid H4 visa in US.

Any answer is valued.

Thanks,
BK

If you file 485 now ,then u get married and get ur wife under H4 and file 485 provided dates are current then u r fine .But if u r unable to file 485 becuase your PD is not current then she will not be able file 485 ,also if u recieve the GC later ,she is out of status. You can file 485 on family basis which takes a very long time and she will have wait outside the country.
But if u get married before u file 485 ,even if your 485 is approved u get 180 days to file her 485.
Bottom line is if u file 485 after ur marriage it is the safest thing to do otherwise you r taking a chance.

nixstor
06-20-2007, 12:37 AM
All,
I would appreciate an answer to my question:

-- I am yet to marry but am engaged.
-- Marriage may take place in a few months.
-- My LC and I-140 are approved.
-- App for I-485 is yet to be filed. PD is current.

If I file for I-485 under EB2 category NOW and get married a few months later when retrogression of visas begins, would it be possible for my spouse then to be able to file under my application for I-485? I am considering the possibility that my I-485 may be approved before she can file though she is on valid H4 visa in US.

Any answer is valued.

Thanks,
BK


You cannot use derivative benefits when your PD is not current or your PD has retrogressed. That means you cannot add your spouse's 485 application. If your 485 is approved before you add her application, i think you are looking at a nightmare where she has to come on her own visa and not H4.

kalahasti
06-20-2007, 12:56 AM
Members,
Thanks a lot for your replies.

If I do not go for filing for I-485 now, when would you think the visa allocation will happen again? Like a year or 2 years from now?

I will contribute $20.00 this month and sign up for membership.

Thanks,
BK

50cent
06-20-2007, 12:39 PM
And also can we include the Wife in the I-485 if she is outside the US ?

Thanks..

voldemar
06-20-2007, 12:47 PM
And also can we include the Wife in the I-485 if she is outside the US ?Quick answer - no. Also there is no such thing as 'include to I485'. Each applicant files own I-485. Your wife will file her own I-485 as a derivative.

voldemar
06-20-2007, 12:49 PM
You cannot use derivative benefits when your PD is not current or your PD has retrogressed. That means you cannot add your spouse's 485 application. If your 485 is approved before you add her application, i think you are looking at a nightmare where she has to come on her own visa and not H4.
As far as main applicant is married BEFORE I-485 approval, the spouse can file her I-485 as soon as PD is current. It is called 'Follow to join application'.

buehler
06-20-2007, 12:50 PM
Kalahasti,

In case you file your I-485 now and you get married before it is approved, you're safe, even if you have not yet applied for your spouse's I-485 before your I-485 approval. The only thing you will have to worry about is getting approved before the marriage date. When you come back and if the PD is retrogressed, you will have to wait for it to become current for you to file your wife's I-485. In case you get approved before you file your spouse's I-485, you have 180 days to apply for it.

To answer 50cent's question, I-485 can be filed only when the person applying is in the US at the time of applying.

50cent
06-20-2007, 04:15 PM
Thanks for you answers...

Sorry I had one more question:

I am planning to get a "registered" marriage in India and the come back to file I-485 as married status. Will I be able to be able to include her later during I-485 approval (during the 180 days time) you mentioned ?

This is a time of great anxiety and hapiness for all IV members...

Thanks for your support...

amsgc
06-26-2007, 03:22 PM
Hi,

I just got off the phone with a USCIS officer. I wanted to ask them how I can have my spouse benefit from the Green Card process.

My case:

- I-140 Approved in May (so no dependent mentioned)
- Got married In June, wife in US on non-immigrant (student) status
- Want to apply for I-485 for myself and wife.


The USCIS officer said that my wife is NOT eligible to file for AOS becuase:

- She was not listed as a dependent in my immigrant petition.

Is this information correct? This is so contrary to all that I have understood so far. I can't believe it.

I always thought that the spouse could file her I-485 with me, as a derivative, and no other paperwork related to I-140 was required.
The USCIS officer said that during the adjudicating process, they will dig out my I-140, find that my spouse was not listed as a dependent, and there will be problems down the line.

Gurus, please advise. If you have done what I am attemtpting to do, please share your experience. If there is a technical name of this, or a link to the law, please indicate. I want to call the USCIS again with more information.

I still can't believe this and feel foolish asking...specially since several in this form are planning to get married now!

Thanks in advance

amsgc
06-26-2007, 03:33 PM
/\/\/\

Some one please put my question to rest :)

gc_check
06-26-2007, 03:39 PM
Hi,

I just got off the phone with a USCIS officer. I wanted to ask them how I can have my spouse benefit from the Green Card process.

My case:

- I-140 Approved in May (so no dependent mentioned)
- Got married In June, wife in US on non-immigrant (student) status
- Want to apply for I-485 for myself and wife.


The USCIS officer said that my wife is NOT eligible to file for AOS becuase:

- She was not listed as a dependent in my immigrant petition.

Is this information correct? This is so contrary to all that I have understood so far. I can't believe it.

I always thought that the spouse could file her I-485 with me, as a derivative, and no other paperwork related to I-140 was required.
The USCIS officer said that during the adjudicating process, they will dig out my I-140, find that my spouse was not listed as a dependent, and there will be problems down the line.

Gurus, please advise. If you have done what I am attemtpting to do, please share your experience. If there is a technical name of this, or a link to the law, please indicate. I want to call the USCIS again with more information.

I still can't believe this and feel foolish asking...specially since several in this form are planning to get married now!

Thanks in advance

I'm not sure on what basis, USCIS officer said that your wife is NOT eligible to file for AOS.. he is wrong.

If you have a I-140 Approved or pending, now that the dates are current you can file I-485 and if you are married, you can file for your spouse too. Check with your attorney. Most of the members in this forum are in the same situation and are filing for both (self and spouse).

amsgc
06-26-2007, 03:43 PM
I'm not sure on what basis, USCIS officer said that your wife is NOT eligible to file for AOS.. he is wrong.

If you have a I-140 Approved or pending, now that the dates are current you can file I-485 and if you are married, you can file for your spouse too. Check with your attorney. Most of the members in this forum are in the same situation and are filing for both (self and spouse).

Thank you gc_check for your response. I appreciate it.

I too think it is possible to do this. My I-140 has been approved, but I was not married then.
Anybody here who has done it this way? Gosh i feel stupid everytime I ask:)

sanan
06-26-2007, 03:46 PM
I don't believe those people sitting behind the 800 number at CIS are well aware of the laws. Is that what you calling "USCIS officer"?
Hi,

I just got off the phone with a USCIS officer. I wanted to ask them how I can have my spouse benefit from the Green Card process.

amsgc
06-26-2007, 03:50 PM
I don't believe those people sitting behind the 800 number at CIS are well aware of the laws. Is that what you calling "USCIS officer"?

yes, I spoke to someone at the 1800 number. My main concern was related to my spouse's J1, which seemed complicated. The USCIS officer then escalated my query and called in an expert. And the first two questions she asked me was:

1. 2 Yr HRR? - No
2. Was your spouse listed as a dependent on the I-140. - No

She seemed very certain that since my spouse was not listed in the I-140 as a dependent, she is not eligible to file I-1485.

485_spouse
06-26-2007, 03:51 PM
Following is my scenario and the advice I received from a Top (at least high fee: $250 for a 20 minute phone session) lawyer.

EB3 PD Nov 2002 I-140 Approved Jan/04 1-485 filed June 04. I got married in Dec 04 and we were back in USA in Jan 05. Unfortunately we were 2 week too late to beat the retrogression.
My lawyer told me to file wife's 485 as she is dependent and PD is not an issue. Absolutely wrong. USCIS returned her application after 5 weeks.
We waited almost 2.5 years to finally file her application in June 07. I got approved on 23 June but we are OK since her application was filed before that

Key:
1. Get married before your GC approval (before/after 140/485 does not matter as long as you are not approved.
2. Bring spouse on H4 (No derivative status with EAD so maintain H1)
3. Keep all the documents ready (Birth certificate/Marriage certificate etc.)
4. Follow visa bulletin as soon as dates are current get medical test completed
5. File her 485 (Make sure USCIS receives it after the dates become current)
(If USCIS receives your application before dates being current they may still accept the package and reject it after couple of weeks. )
6. What if you are married before GC approval but get approved before her 485 is filed
1. Spouse out of USA
No other way but to file 'Follow to join' in home country. Spouse will not be able to entry on any other visa before his/her GC approval.
2. Spouse in USA on his/her own status ( i.e. wither H1/L1/F1 etc.)
File 485 as a derivative no special processing
3. Spouse in USA as your dependent ( i.e. H4 etc.)
he/she will be 'out of status' as soon as your GC is approved. Inspected by an immigration agent at entry point. Not on parole. You can file 485 under [Section 245(K)] within 180 days. No special processing. NO fines.


Please talk to a reputed lawyer before doing any thing.

a_yaja
06-26-2007, 03:54 PM
Thank you gc_check for your response. I appreciate it.

I too think it is possible to do this. My I-140 has been approved, but I was not married then.
Anybody here who has done it this way? Gosh i feel stupid everytime I ask:)
As long as you have your marriage certificate, no one can stop you from filing the AOS for your wife. The IO really does not know what he is talking about. At the most, they will send you an RFE asking for details of the marriage. Per Geneva Convention, marriage in a different country must be recogonized. US and India(assuming that you are from India) are both signatories to this. The law clearly states that your wife and children can follow you (as long as your application is not approved).

amitjoey
06-26-2007, 03:57 PM
Following is my scenario and the advice I received from a Top (at least high fee: $250 for a 20 minute phone session) lawyer.

EB3 PD Nov 2002 I-140 Approved Jan/04 1-485 filed June 04. I got married in Dec 04 and we were back in USA in Jan 05. Unfortunately we were 2 week too late to beat the retrogression.
My lawyer told me to file wife's 485 as she is dependent and PD is not an issue. Absolutely wrong. USCIS returned her application after 5 weeks.
We waited almost 2.5 years to finally file her application in June 07. I got approved on 23 June but we are OK since her application was filed before that

Key:
1. Get married before your GC approval (before/after 140/485 does not matter as long as you are not approved.
2. Bring spouse on H4 (No derivative status with EAD so maintain H1)
3. Keep all the documents ready (Birth certificate/Marriage certificate etc.)
4. Follow visa bulletin as soon as dates are current get medical test completed
5. File her 485 (Make sure USCIS receives it after the dates become current)
(If USCIS receives your application before dates being current they may still accept the package and reject it after couple of weeks. )
6. What if you are married before GC approval but get approved before her 485 is filed
1. Spouse out of USA
No other way but to file 'Follow to join' in home country. Spouse will not be able to entry on any other visa before his/her GC approval.
2. Spouse in USA on his/her own status ( i.e. wither H1/L1/F1 etc.)
File 485 as a derivative no special processing
3. Spouse in USA as your dependent ( i.e. H4 etc.)
he/she will be 'out of status' as soon as your GC is approved. Inspected by an immigration agent at entry point. Not on parole. You can file 485 under [Section 245(K)] within 180 days. No special processing. NO fines.


Please talk to a reputed lawyer before doing any thing.

Thanks for sharing this information, this will help a lot of single people here. Also the money that they will save talking to a lawyer. May I suggest, donation for IV efforts.

amsgc
06-26-2007, 04:00 PM
Thank you!!

your case is similar to what I am trying to attempt. I see that your I-140 was approved before you got married. And your spouse filed as a derivative, in the I-485.

Ok. I think I am ok.

Thanks everyone for you responses.

All the best,
Ams

sanan
06-26-2007, 04:03 PM
post deleted by moderator


Members:
- Please channel your energies into some positive direction, ie stick to actions suggested in IV action alerts.
- Do not denigrate any individual or lawfirm. Most of you will agree that you frequently visit other attorney websites to get your questions answered.

485_spouse
06-26-2007, 04:37 PM
post deleted by moderator


Members:
- Please channel your energies into some positive direction, ie stick to actions suggested in IV action alerts.
- Do not denigrate any individual or lawfirm. Most of you will agree that you frequently visit other attorney websites to get your questions answered.

n_2006
06-26-2007, 05:06 PM
yes, I spoke to someone at the 1800 number. My main concern was related to my spouse's J1, which seemed complicated. The USCIS officer then escalated my query and called in an expert. And the first two questions she asked me was:

1. 2 Yr HRR? - No
2. Was your spouse listed as a dependent on the I-140. - No

She seemed very certain that since my spouse was not listed in the I-140 as a dependent, she is not eligible to file I-1485.

I am curious that why are talking to USCIS people? Why not a lawyer? Unless you want to file on your own you need to talk to your lawyer anyway.

gc_check
06-26-2007, 05:14 PM
yes, I spoke to someone at the 1800 number. My main concern was related to my spouse's J1, which seemed complicated. The USCIS officer then escalated my query and called in an expert. And the first two questions she asked me was:

1. 2 Yr HRR? - No
2. Was your spouse listed as a dependent on the I-140. - No

She seemed very certain that since my spouse was not listed in the I-140 as a dependent, she is not eligible to file I-1485.

Talk to an Attorney as soon as possible, for best answer for your situation. Most J1 visas are issued with a 2 year home residency requirement, if that is the case with your wife she might have to get a waiver... But I'm not sure how this will affect if filing as a dependent. My earlier post, I was not aware of the J1 situation. Also there must be some option available and an immigration attorney should be able to assist

ksam75
06-29-2007, 12:22 PM
485_souse,

I need some advise from you. I'm in similar situation as you except my attorney messed up my wife's petition. My EB3 PD is Jan 2003. I applied for concurrent processing back in Sept 2004. I got married in March 2005 after the visa numbers retrogressed. Like in your case, my attorney filed my wife's I485 saying PD is not an issue. USCIS returned the petition after 5 weeks.

When the visa numbers got current for my PD on June 1st, he re applied my wifes I485. This time he made another mistake and sent the petition to Chicago instead of Nebraska. The petition is not yet returned yet. I'm not sure if it has been forwarded to NSC since the checks haven't been cashed nor a receipt notice was generated. On June 25th, I got my I485 approved. Now, I believe my wife is tentatively out of status. I got a second opinion from Murthy law firm. The attorney said she is covered under 245(K) and as long as I apply her I485 within 120 days, she should be ok, provided the visa numbers remain current.

I dont know where my wife's application that was sent to Chicago at. My current attorney wants to to wait for a few more days to see if the Chicago application gets rerouted or returned back. If not, he says he can refile the petition at NSC. He however warned that if NSC eventually ends up with 2 petitons, it will create lot more problems. On the other side, I read that news in www.immigration-law.com that visa numbers are running out and USCIS may start rejecting applications once the numbers run out.

I'm very anxious and not sure what to do at this point. Based on your point #3, will travel be a problem once my wife eventually gets her AP? Please let me know you thoughts on this. Any suggestions would be greatly helpful. Thank you.