can I bring my spouse on H4 while waiting for 485 & apply for her 485?

K

Kumarash

Registered Users (C)
Dear All,

I am waiting for my I485 approval & currently on on h1b in the US. I am considering going to India to get married & bring my spouse on H4 & apply for her 485 as well when she enters the US. Considering the fact that EB2 visa dates are not available for India according to the current visa bulletin, will I have to wait for the dates to become available to apply for her 485 or can she apply right away since mine is already in the process? Also if she cannot apply & has to wait until the visa dates are Current what are our options in case I get my approval & my h1b status expires & subsequently her h4 as well?

please shed some light on this issue. I will be very greatful to anyone who helps.
Sincere Thanks!
 
ok thanks. So unless my PD becomes current I will not get my approval & when the PD becomes current assuming that my 485 adjudication may take some time for approval I should be able to apply for my spouse's 485, right? will the BCIS consider her application at that point (based on my 485)?

Thanks so much for your reply in advance!
 
Kumarash said:
So unless my PD becomes current I will not get my approval & when the PD becomes current assuming that my 485 adjudication may take some time for approval I should be able to apply for my spouse's 485, right?
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That's correct. Once your PD becomes current (which if you're EB-2 India won't happen for another nine months at least, maybe more) she can file an I-485.

will the BCIS consider her application at that point (based on my 485)?
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They'll take it, but it's unlikely they'll be adjudicated together.
 
So I should not panic..

Thanks so much for the information. so although the appoval may take long time (as you indicate it could be as much as 9 months) it may just be a blessing in disguise for me - to buy some time to marry & not be in a panic mode. thanks again
 
effect of FBI name check clearence on EB2 INDIA "U" on visa bulletin?

Hi TheRealCanadian, What do you think about the recent memo about FBI name checks clearing soon? My 485 was filed 12 March 2007 under EB2 India category with a PD of July 22, 2002. Since its almost close to a year since the 485 was filed, do you think the GC will actually come around now assuming my petition was actually stuck in 'Name check'? Even if the Visa Bulletin still says "U" for EB2 India? I remember you'd mentioned earlier in this thread that the process of "U" to "C" or at least "anything after July 2002" may take upto 9 months. What do you think would my real problem of marrying my fiancee before 485 approval can get worsen due to this expediting of FBI name check ?

Thanks so much for your valuable time.
Kumar
 
Kumarash said:
Since its almost close to a year since the 485 was filed, do you think the GC will actually come around now assuming my petition was actually stuck in 'Name check'? Even if the Visa Bulletin still says "U" for EB2 India?
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Your I-485 will not be approved before October 1st. End of Story.

When a category goes "U" it means that there are no more visa numbers to be given out, and no I-485s in that category can be approved, nor can any immigrant visas be given out at a consulate abroad.
 
Thank much! do you have any memos or document from where I can infer that "U" will not become "C" until Oct 1st, 2008? I have a couple of friends stuck in the same problem with no information. Thanks again for your valuable time. Kumar
 
Kumarash said:
Thank much! do you have any memos or document from where I can infer that "U" will not become "C" until Oct 1st, 2008?
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If a category is unavailable, then all visa numbers are exhausted. Since visa numbers are allocated on a per-fiscal year basis (and the start of the new fiscal year is Oct 1st) then no approvals will be granted until October 1st, when the new FY09 visa numbers are available.

It's just like the H-1B cap. Once the numbers are used up, no more approvals.
 
Unless more numbers become available

The only thing that could change is more visa numbers becoming available - either through recapture or new legislation. The chances are almost zero, but we can only hope!
 
TheRealCanadian said:
That's correct. Once your PD becomes current (which if you're EB-2 India won't happen for another nine months at least, maybe more) she can file an I-485.



They'll take it, but it's unlikely they'll be adjudicated together.
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Both are apparently true. However since you are getting an arranged marriage (probably) consider the following scenario:

PD gets current before you are married. You get married and get your wife on H4. Before you have filed her 485, your 485 gets approved PD gets retrogressed.....meaning what?

You cannot file for wife, who would now be out of status since your H1 automatically gets over when you get GC approval resulting in her H4 getting canceled as well.

Now she is out of status and you cannot file her 485 UNTIL your PD gets current.....scary scenario..

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It almost happened to me: I filed 485 in 2004, got married in 2006 brought wife on H4.

In July 2007, all categories were current so filed for wife's 485 on July 2. If you remember the fiasco, for a few weeks they had all applicants in July 2007 in limbo until Jul 17.

Finally her case DID get accepted because USCIS accepted all cases then. However i got my GC in August with PERMANENT Resident Date since July 2 SAME date as we filed for my wife...

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Hopefully this wont happen to you but just be aware of this unique possibility. PDs are known to fluctuate wildly esp. for India. With the new ruling on security checks past 180 days (read other forums), Indian nationals applying for EB AOS are in probably for a wilder ride.
 
Wow..that is indeed a scary situation. I think I must not delay so should go right away to get her here. so at least when she is here & should a thing like that happen I could probabely change her status in to F1 or so during the grace period (if at all my H1 gets nullified due to 485 approval). considering no approvals will happen until "U" becomes "C" I should still be able to file for her as soon as that happens. provided she is already here on H4 well before that happens. Thanks again!
 
I dont think there is any worry if your 485 gets approved after you are married and after your wife is in US on H4.
In that case,there is "follow-to-join" process wherein you can apply for I-485 for your wife saying she is secondary applicant and her 485 will be processed within 6 months.
Also,the I-485 has to be filed for her within 6 months of your 485 approval.

Thats my understanding - not sure if things changed in recent past.
 
everonh1 said:
I dont think there is any worry if your 485 gets approved after you are married and after your wife is in US on H4.
In that case,there is "follow-to-join" process wherein you can apply for I-485 for your wife saying she is secondary applicant and her 485 will be processed within 6 months.
Also,the I-485 has to be filed for her within 6 months of your 485 approval.

Thats my understanding - not sure if things changed in recent past.
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Unfortunately this is totally wrong.

Follow-to-join is when spouse is OUTSIDE the country...And it is a painful long process where local consulates (India: Delhi, Bombay, Calcutta, Madras depending on where your wife lives) would decide on that case. And of all accounts this is a real BAD option.

This was never the case and there is NO
a) RULE saying it would be processed within 6 monts
b) It has to be filed within 6months.

The "6 months" if anything is this: A person applying for 485 (AOS) can be out of status for a max of 6 months to avail of built-in forgiveness of section 245[k]. So if you get your GC, and then PD retrogresses so that you are unable to file 485 for wife and that she has gone out of status; then she can file for 485 ANYTIME when PD is current, though USCIS might raise issue if she has been out of status in the country for more than 6 months....i.e., 245[k] provides relief of upto 6 months of out-of-status stay.
 
aaifor said:
PD gets current before you are married. You get married and get your wife on H4. Before you have filed her 485, your 485 gets approved PD gets retrogressed.....meaning what? You cannot file for wife, who would now be out of status since your H1 automatically gets over when you get GC approval resulting in her H4 getting canceled as well. Now she is out of status and you cannot file her 485 UNTIL your PD gets current.....scary scenario..
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This isn't the first time this has been mentioned, but to be honest I've never seen such a scenario. The PDs only move once a month, and USCIS is quite good about warning on retrogression 45-75 days before it occurs.

It's not an impossible scenario, but not entirely likely.

I would however, ensure that you get your spouse in the country on an H-4 before October 1st.
 
Forgot to ask one thing: Assuming retrogression occurs & spouse falls out of status on H4 & the retrogression continues for another 6 months there by loosing the 245(K) relief also, can at that point a change of her status from
H4 to H1 or F1 or another NIV happen at all ? or is it advisable that we get her status change to any other NIV status for her to continue to stay legally in the US during the 45 day warning period or whenever its deemed necessary but just before the h4 gets nullified due to my GC approval?
 
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