Filed I485 on May 31 for spouse. Mine apprvd on June 1. Whats her I485 future?

M

MohitFL

Registered Users (C)
I just received an email saying 'card production ordered'. Means my GC got approved on June 1 2007 (in EB3 category). My wife's I-485, EAD and AP application was sent on May 31, 2007 to add onto my GC process and USCIS should get it on June 1.

I don't know what will happen with her I-485 now. Will it be approved or will it be invalidated or I have to reapply for her through Counceler Processing? Please advise.
 
From book knowledge, since your PD became current on...June 1st...

I am guessing she will have to refile under the Family Based quota...

But, in Murthy, I heard that - you can voluntarily request to USCIS to dismiss your I485 and refile I485 for yourself/spouse/etc....all again from scratch....to avoid going through FB route...
 
You got married to her long before your approval didn't you? If so, my understanding is you should be fine...

http://www.murthy.com/news/UDmar485.html

However, although it should be clear to them from your marriage certificate when you got married, I have no idea if there is any further specific action needed on your part. Hopefully someone with this experience will chime in, or you should ask your attorney. But the bottom line, the problem is if you get married to her AFTER your approval. If it happened before 6/1, you should be okay.

MohitFL said:
I just received an email saying 'card production ordered'. Means my GC got approved on June 1 2007 (in EB3 category). My wife's I-485, EAD and AP application was sent on May 31, 2007 to add onto my GC process and USCIS should get it on June 1.

I don't know what will happen with her I-485 now. Will it be approved or will it be invalidated or I have to reapply for her through Counceler Processing? Please advise.
Click to expand...
 
No worries MohitFL... One of my other friend was in the same boat.. His Attorney said, as long as your marriage date is before your approval date, your wife can file her I485 when her PD becomes current.
(Do not ever think about refiling ur I485... ofcourse)

Just talk to an attorney about it . You will get peace of mind then.

Cheers.
 
This article says your wife loses non-immigrant status the moment you get approved....and since I485 is not filed for her....she is out-of-status....

But the article seems to be hinting at using the 180 day out-of-status rule to protect herself...and alternate routes to get back into status (FB route)

>>>
The dependent spouse is considered out of status if s/he holds nonimmigrant status that is based on that of the primary, and the primary's case is approved before the derivative spouse can file his/her own I-485 application. There is a bit of a safety net, however, under Section 245(k) of the Immigration and Nationality Act. This applies in employment-based cases and allows the filing of I-485s even if the applicant has been out of status for up to 180 days. Thus, if there is a short gap between the approval of the primary's I-485 and the filing of the dependent's I-485, the dependent's case should still be accepted and approved.

http://www.murthy.com/news/n_retspo.html
 
I know it is too late.

Is it possible to pro actively call USCIS to hold the approval until he files his spouse AOS? (answer might helps others)
 
Guessing her I485 will be accepted and be in Pending

I have very much thankful for the information you guys have sent.

My wife is here on H1 insted on H4 and her I485 is filed as 'spouse derivative/dependent classification' basis.

Today I called USCIS and asked to hold my approval, and I was told it can't be done now.
Reading the info on links, I felt that her I485 (EAD and AP too) will be taken as Pending. Though not totally sure.

Any ideas how much time it will take to get her I485 approved?

Thanks a lot

-------------
EB3(VSC), India/PD - Sep 2002
May 31, 2007 - Spouse I485 sent
June 1, 2007 - Card production ordered.
June 4, 2007 - Approval notice sent.
June 4, 2007 - Spouse I485 delivered to USCIS.
-------------
 
better talk to lawyer....

1) If your wife gets I485 Receipt number or the checks get encashed...you may be lucky...and USCIS took in her petition...

2) If not, since she is on H1B - she won't be out-of-status (unlike H4)...
but you may be looking at another possibility of USCIS rejecting the entire petition for your spouse and asking her/him to take FB route...

Hope (1) happens in your case...better talk to the lawyer to check out your options..
 
I called my office and a non lawyer person told me that USCIS may send her application back.
I am scheduled for a conference call with my lawyer tomorrow afternoon.

FB(Family based), will take 4-6 years to get her GC.
Reading my case 'Married : Adjustment of Status Pending for Primary' in http://www.murthy.com/news/n_retspo.html makes me feel that USCIS should accept it.

I hope Section 245(k) applies to her and she is approved too. I will post details. Thanks for your Input.
 
MohitFL said:
I called my office and a non lawyer person told me that USCIS may send her application back.
I am scheduled for a conference call with my lawyer tomorrow afternoon.

FB(Family based), will take 4-6 years to get her GC.
Reading my case 'Married : Adjustment of Status Pending for Primary' in http://www.murthy.com/news/n_retspo.html makes me feel that USCIS should accept it.

I hope Section 245(k) applies to her and she is approved too. I will post details. Thanks for your Input.
Click to expand...

From reading the post there are saying , one key thing....the moment one gets GC - their status changes from H1B to Permanent Resident....but for spouse from H4 to ??....Yep, she becomes out of status....Her, H4 status becomes invalidated.....That's kind of funny...how the law works...Is Murthy correct on this??? There is a law called 245(k) which allows upto 6 monhts of illegal stay in USA. Then she could use this 6 month period to get into FB route of applying for GC...

Since your spouse is on H1B...her status is independent of you...so this scenario will not apply...she is probably better off applying for GC (Option 1) on her own or trying FB route (Option 2) (if 485 packet gets rejected)....

And the other option is, you can request USCIS to rescind your 485 approval and both you and your wife can re-apply for 485 from scratch..Option 3...(I read this in Murthy forum sometime...but don't seem to find it)
 
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MohitFL said:
I called my office and a non lawyer person told me that USCIS may send her application back.
I am scheduled for a conference call with my lawyer tomorrow afternoon.

FB(Family based), will take 4-6 years to get her GC.
Reading my case 'Married : Adjustment of Status Pending for Primary' in http://www.murthy.com/news/n_retspo.html makes me feel that USCIS should accept it.

I hope Section 245(k) applies to her and she is approved too. I will post details. Thanks for your Input.
Click to expand...

Please look up for the option "Follow to join" & the postings by Poongunranar - I remember Poongunranar using that option.
 
this may be good news for you....this guy filed for spouse , 8 months after his 485 approval..

>>>>>>

poongunranar
Registered User Join Date: Jan 2003
Location: Atlanta, Georgia
Posts: 925

Ingc

--------------------------------------------------------------------------------

Quote:
Originally Posted by INGC
You have mentioned that you have filed I-485 for your spouse after your I-485 is approved. Is it true ?

Absolutely? Why this disbelief?

Quote:
Originally Posted by INGC
Are there any special processing or steps while filing your spouse I-485 application, since your I-485 is approved ?

Absolutely none. You just need to be VERY CAREFUL that USCIS doesn't reject your petition citing, "you should file I-130." At times, they overlook and see this type of case as being one of an LPR filing for his/her spouse "after marriage" and they tend to see that as a marriage-based-case. So long as you were married prior to the primary's approval and the dependent spouse is on a dual-intent visa inside the US and that the primary's priority date is current, you can file I-485 for the derivative spouse as a "follow-to-join."

In my case, USCIS did NOT commit any mistake during filing and it correctly treated my wife's petition as one of derivative spouse. I had filed my wife's petition 8 months after my approval.
__________________
Caveat Emptor: I am incompetent to offer peremptory legal advice as I am not a legal attorney.

Leges sine moribus vanae (Laws without morals are useless) - University of Pennsylvania's Motto.

I-485 AD - 09/2005.

>>>>>
http://boards.immigrationportal.com/showthread.php?t=227170
 
MohitFL said:
I called my office and a non lawyer person told me that USCIS may send her application back.
I am scheduled for a conference call with my lawyer tomorrow afternoon.

FB(Family based), will take 4-6 years to get her GC.
Reading my case 'Married : Adjustment of Status Pending for Primary' in http://www.murthy.com/news/n_retspo.html makes me feel that USCIS should accept it.

I hope Section 245(k) applies to her and she is approved too. I will post details. Thanks for your Input.
Click to expand...

If the case is reached after June 1 you are safe. Your wife is on H1. You got married before I-485 approval. So there is no need to worry. Even 245(K) is not necessary here.
She will all under EB not FB.
Even if they send you back because it reached on May 31 resend it. It will be all right.
 
Banta

The link http://www.murthy.com/news/n_retspo.html says that -
Section 245(k) of the Immigration and Nationality Act applies in employment-based cases and allows the filing of I-485s even if the applicant has been out of status for up to 180 days. Thus, if there is a short gap between the approval of the primary's I-485 and the filing of the dependent's I-485, the dependent's case should still be accepted and approved.

So if the above statement can be believed then looks like from above statements that USCIS should accept and approve her case. May be after the posts after yours, you will also feel that option 1(file GC on her own) and 2(apply Family based GC) may not be appropriate/applicable/best for my spouse.

Dallas03096
Thanks for this info. According to Poongunranar - 'you can file I-485 for the derivative spouse as a "follow-to-join."'
I don't know what "follow to join" signifies here? I thought follow to join is a process that is used if spouse in not currently in USA. I just filed her I485. Don't know anything abt. follow to join.

I filed for I - 485. I picked option - b on I485 page 1 which says - I am applying for an adjustment to permanent resident status because - my spouse or parent applied for AOS or was granted lawful Permanent residence in an immigrant visa category that allows derivative status for spouse and children".
I hope the above option was split so that USCIS guys could easily differentiate between family based and derivative based cases as alerted by Poongunranar.

number30
My spouse is in US on H1B. We got married before I-485 approval and her I485 delivered to USCIS on June 4, 2007.

So I am getting a feeling from all you guys's input that her I485 should be accepted. I will post my lawyers response soon. Thanks for all of yours input.


EB3(VSC), India/PD - Sep 2002
May 31, 2007 - Spouse I-485 sent
June 1, 2007 - My Card production ordered.
June 4, 2007 - My I-485 Approval notice sent.
June 4, 2007 - Spouse I-485 delivered to USCIS.
 
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MohitFL said:
So I am getting a feeling from all you guys's input that her I485 should be accepted. I will post my lawyers response soon. Thanks for all of yours input.
Click to expand...

I agree -- and that's what the first link I posted seems to say. Your wife is here and not out of status (which makes 245(k) irrelevant), and you guys got married prior to your approval (this is another critical point). Which I believe means you guys should be okay.

Follow-to-join is for cases where you guys got married prior to your approval AND she is out of the US (in that case her case would be processed as CP), but this does not apply to you.

And FB would be an option if you guys are not married when your case is approved. Which is not the case with you (but if that is the case, the option would be as a GC holder spouse, you serve as her sponsor, which would take so too long). Or she applies herself as a primary of EB base GC, which is independent of your marriage. But you guys marriage happened prior to your AD, 6/1. So neither of those should apply either.

Keep track of her case and see if they issue a receipt notice. I think your wife's application should be accepted. At least your wife won't be out of status if they mishandle it at first and/or any further action/document etc is needed from you.

And you are using an attorney, right? You should check with him/her just in case.
 
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I am on the same boat..

I received my Approval Sent email and Card Production Ordered email this morning. My wife is on F-1 and we had sent all the papers for AOS for her to the lawyer last week. The lawyer will be sending her application tomorrow morning to USCIS. I am a bit confused with the situation. My laywer says it will be a follow-to-join application. How can that be if my wife is in USA? Also, will her F1 visa (non dual intent) create any problem?

Thanks in advance for your insights.
 
First off, congrats!

It is AOS... not follow-to-join, I believe. But sounds like your lawyer meant AOS by FTJ.

Since your wife's status will be adjusted from F-1 to permanent residency, her status should remain F-1 (with valid I-20) while AOS is pending, as long as she stays in US. However, once she travels out of US while it's pending, she cannot be back on F-1 (let alone renew her visa sticker at US embassies/consulates) because it is not dual intent. So in that case she reenters the US as a parolee on AP and stays in the US as a parolee, authorized by her pending AOS.

That's how I (= layperson) understand it. I'm not perfectly clear though if you can renew expired I-20 in that case, or if on its expiration her stay is authorized on pending AOS only. Better ask your attorney. As long as she stays inside the US boundaries, though, her F-1 status itself should not be a problem.


Confused_007 said:
I received my Approval Sent email and Card Production Ordered email this morning. My wife is on F-1 and we had sent all the papers for AOS for her to the lawyer last week. The lawyer will be sending her application tomorrow morning to USCIS. I am a bit confused with the situation. My laywer says it will be a follow-to-join application. How can that be if my wife is in USA? Also, will her F1 visa (non dual intent) create any problem?

Thanks in advance for your insights.
Click to expand...
 
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I am on the same boat..

I received my Approval Sent email and Card Production Ordered email this morning. My wife is on F-1 and we had sent all the papers for AOS for her to the lawyer last week. The lawyer will be sending her application tomorrow morning to USCIS. I am a bit confused with the situation. My laywer says it will be a follow-to-join application. How can that be if my wife is in USA? Also, will her F1 visa (non dual intent) create any problem?

Thanks in advance for your insights.
 
Dear geofu54:
Thank you for the detailed message. I appreciate it.

You are correct. Lawyer said it is AOS by FTJ. It is still AOS. Lawyer had already sent the application to USCIS this afternoon.

Lawyer did mention that once she applies, my wife's F1 becomes void. However, lawyer mentioned that my wife can apply for Advance Parole and EAD and use them for travel and work respectively -based on the pending AOS. Lawyer did not mention any reason for holding on to the F-1 (as a mandatory need).

thoughts? thanks again.
 
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