Marriage with F1 student while I-485 is pending?

R

Reza-EB2 NIW

Registered Users (C)
Hi Folks,
My fiance entered in US almost 2 months ago on F1 visa. I am currently on H1 status and have a I-485 pending since January 2007. My I-140 has been approved based on Eb1-EA petition. My questions is:
::: Can I marry with my fiance and add her name to my I-485 application now? I have heard that I should wait for at least 3 months and then file for her I-485.

Any help would be appreciated...
Thanks
RSY
 
Hello Reza, I am not a lawyer, but I think it is "easier" if she is already here in the USA in your pending 485 stage. Talk to your lawyer - there is a something called 'add to join' or 'follow to join'. I am not 100% sure. But definitely get her added on "before" your 485 gets approved. Dont worry wait too long, if you get the GC, then I think it will be a super long wait until you become US Citizen. Good luck !!
 
You don't need follow to join, thats for spouses outside the US. Just file a 485 for her once you got married. And yes, there should be 3+ month between when she entered and when you get married/file for the 485. 6 month is even better. But make sure your I-485 doesn't get approved in the meantime. It might even make sense to withdraw it and re-file. Since you are on H1 with approved I-140 you can renew your H1B indefinitely in the meantime.
 
Is this 3+ months documented somewhere as an USCIS rule or is it just the experience of other applicants? What will happen if one applies in two months?

Thanks
RSY
 
What will happen, or rather could happen, is being accused of fraud since entering the US on a non-immigrant visa (F) and then immediately applying for AOS indicates that the applicant never intended to enter the US as a non-immigrant in the first place. That's not to say she will certainly face problems, but it is a moderate-to-high risk. USCIS doesn't look kindly on those who it believes had immigrant intent despite applying to enter the US in non-immigrant status, although "intent" hasn't been clearly defined either.
 
Google for 30/60/90 rule, it explains USCIS' internal guidelines.

Past 90 days they have the burden of proof that you entered with immigrant intent. Its not a guarantee that they won't give you a hard time, but since now USCIS has to prove it, its more likely that you will succeed.

60+ days only is presumption of immigration fraud, and you have to prove why not.

Not meeting 30 days means certain immigration fraud, and its almost impossible to convince them otherwise.
 
Hi All,
Just another quick question. In case we file for her I-485 based on our marriage, will she keep her F1 status? A few weeks ago I entered USA using my advance parole. So my I-94 stamped as "AOS". I still work in the university based on my H1B status so I am not using my EAD card. I am just asking to know in case our I-485 gets denied what would be the future scenario.
Thanks for the advice
RSY
 
You are not technically in H-1B status anymore because you entered as a parolee. Because you have a valid H petition though, you don't have to use your EAD, i.e. your current employment is still legal (as long as you are working for your H sponsor). Therefore, if I were you I'd file for an H status extension, which will reinstate your H status. this way you'll have a fall-back position.

An F visa is a different story, as it is not a dual intent status and may produce problems down the line with a pending I-485. This is another reason to reinstate your H status, so that your spouse will be able to fall back on H-4 in case something happens to your I-485. See here for more information.
 
Hi All,
Thanks for all the information. Would it make sense for me to marry with my fiance but do not file for her I-485 until a few months later (to pass the 30/60/90 problem)? I was reading somewhere that in case my I485 got approved before her 485 filing, then she can get the green card too based on the fact that our marriage date is before the approval of I485.
If this is possible, her status will be changed to H4, right? Can she study and receive her financial support from the university?

Thanks for any input or suggestions...

RSY
 
She can continue her studies while on H4, but I don't think she can get a stipend or any financial support from the university while she is in that status.
 
Reza-EB2 NIW said:
Hi All,
Thanks for all the information. Would it make sense for me to marry with my fiance but do not file for her I-485 until a few months later (to pass the 30/60/90 problem)? I was reading somewhere that in case my I485 got approved before her 485 filing, then she can get the green card too based on the fact that our marriage date is before the approval of I485.
If this is possible, her status will be changed to H4, right? Can she study and receive her financial support from the university?

Thanks for any input or suggestions...

RSY
Click to expand...

You can marry her and still she can continue on the F visa. Once she apply for I-485 she will get a EAD. Then she will able to receieve financial support from the university.
 
Thanks for all the informative answers.

Question: if the wife entered the U.S. on a non-immigration visa, married the husband, waited 90+ days, but during the 90 days the husband got his I-485 approved (after the marriage date), what process should the wife follow to get her status adjusted after the 90 days, I-485? I-824? or something else? At the time when the wife can file for AOS, the husband would no longer be I-485 pending, but I-485 approved. The I-485 approval date however is after the couple's marriage date.

Thank you very much.
 
qingya said:
Thanks for all the informative answers.

Question: if the wife entered the U.S. on a non-immigration visa, married the husband, waited 90+ days, but during the 90 days the husband got his I-485 approved (after the marriage date), what process should the wife follow to get her status adjusted after the 90 days, I-485? I-824? or something else? At the time when the wife can file for AOS, the husband would no longer be I-485 pending, but I-485 approved. The I-485 approval date however is after the couple's marriage date.

Thank you very much.
Click to expand...

As long as marriage is registered prior to I-485 approval spouse can apply I-485. Should not leave the country before getting Advance parole.

In case if spouse not in US you will apply I-824 which consular processing also called as Follow to join.
 
I agree with number30.
Just to clarify what number30 said -

As long as
1) marriage is registered prior to I-485 approval
AND
2) spouse legally present in US
spouse can apply I-485.

When principal's 485 is approved, derivative's status (only if dependent) would be lost. In other words, derivative would be out-of-status if on dependent status, but he/she will be covered by the 180 day rule, under which rule an applicant's out-of-status for upto 180 days could be waived.

number30 said:
As long as marriage is registered prior to I-485 approval spouse can apply I-485. Should not leave the country before getting Advance parole.

In case if spouse not in US you will apply I-824 which consular processing also called as Follow to join.
Click to expand...
 
gcWudBeHere said:
When principal's 485 is approved, derivative's status (only if dependent) would be lost. In other words, derivative would be out-of-status if on dependent status, but he/she will be covered by the 180 day rule, under which rule an applicant's out-of-status for upto 180 days could be waived.
Click to expand...

From I-485 instructions. Derivatives can apply after principal's I-485 get approved with no mention to time limit. I assume this limit is the end of the dependent status eg. H4, J2.....etc (which is theoritically gone by approval of the principal's application).
 
mmed said:
From I-485 instructions. Derivatives can apply after principal's I-485 get approved with no mention to time limit. I assume this limit is the end of the dependent status eg. H4, J2.....etc (which is theoritically gone by approval of the principal's application).
Click to expand...

You are right - theoretically the limit means end of dependent's status. However, a dependent might not file a I-485 even after the limit ends due to one of the several reasons such as "PD not current", "supporting documents for application not available" or "applicant not available".

In such cases, the applicant (= derivative) is out of status. That should not be a problem if out of status is less than 180 days.
 
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