Green Card for Wife

T

tufaan

Registered Users (C)
Green Card Approved, What about my wife?

I got my green card in June 2007. I got married to my wife before my green card got approved. My employment based green card had many many issues but finally got approved. When I got married I asked my lawyer to send an application for my wife as well and he adviced not to apply right now since my green card case was already over-complicated and not to complicate it even more. He further said that as long as I get married before my green card is approved, she can definitely get green card based on my original petition. Based on all that I have read, I agree to that but wanted to know what are your thoughts.

Now assuming that she will get green card based on my 485 application itself, there is another problem. Just after my green card got approved, the PD got retrogressed. My PD was Sep 2002 in EB3 category from India. When I talked to some people, they said I will have to wait till the PD gets current to apply for my wife. I really find this rediculous.

Also if it matters, we have a child, she is 16 months now. She is on H1B visas that expire in around 15 months.


My Questions:
1) Can she get green card based on my original approved I-485 application?

2) Can she apply for a I-485 application right now or does she have to wait till the EB3 India PD becomes Sep 2002?

3) If she has to wait, what are our options? She can't go back to India after 15 months. Like I mentioned we also have a 16 month old daughter.


I thank you very much in advance to help me out here with youy valuable advice.


Regards
 
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tufaan said:
When I got married I asked my lawyer to send an application for my wife as well and he adviced not to apply right now since my green card case was already over-complicated and not to complicate it even more.
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Your lawyer is an idiot.

When I talked to some people, they said I will have to wait till the PD gets current to apply for my wife. I really find this rediculous.
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That's correct. She shares the same PD and category as you.

1) Can she get green card based on my original approved I-485 application?
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Yes.

2) Can she apply for a I-485 application right now or does she have to wait till the EB3 India PD becomes Sep 2002?
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She needs to wait until her/your PD becomes current.

If she has to wait, what are our options? She can't go back to India after 15 months. Like I mentioned we also have a 16 month old daughter.
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I'd give it a few months to see what the Priority Dates are going to do. The other possibility is for her employer to start the LC process for her so that she can become eligible for a 7th year H if it comes to that.
 
File for labor certification before start of her 6th year h1b, then can extend her h1b in 1 year increments and if she has I-140 approved she can get 3 years h1b extension increments
 
In this economy it does not seem like the employer is willing to apply for labor.

Is there any other options? If not, this is really not fair. How can immigration laws not have a provision/exceptions for such situations.
 
tufaan said:
In this economy it does not seem like the employer is willing to apply for labor.
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That is unfortunate. They would rather lose her?

Is there any other options? If not, this is really not fair. How can immigration laws not have a provision/exceptions for such situations.
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I'm not sure what provision you would want them to have. The laws unfortunately do not deal well with stupid attorneys. The priority date system is quite consistent and fair, unfortunately the results are not always pleasant.
 
TheRealCanadian said:
That is unfortunate. They would rather lose her?



I'm not sure what provision you would want them to have. The laws unfortunately do not deal well with stupid attorneys. The priority date system is quite consistent and fair, unfortunately the results are not always pleasant.
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I am in 100% agreement about the priority date system. But I don't think we the people have to pay for their screw up. They should not have approved so many cases at the first place including mine if they did not have visas available. Now if they did, derivatives should not be having to wait for the retrogressed PD to get current. I don't think this is right or fair. Don't you agree?
 
tufaan said:
They should not have approved so many cases at the first place including mine if they did not have visas available.
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Here's the problem - they did have enough visas available at the time to approve your GC; your wife should have filed her I-485 the minute yours was approved. (Well, she should have filed earlier, but that's another story.) Certainly before the PD slammed shut again.

It's not the fault of USCIS that your wife didn't file an I-485.

Now if they did, derivatives should not be having to wait for the retrogressed PD to get current. I don't think this is right or fair. Don't you agree?
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I don't agree, but if your wife had filed an I-485 when the PDs were current you wouldn't have this problem. I have sympathy for you in that you had poor legal representation, but that isn't a problem with the laws.
 
Thank You

Thank you very much for your responses. I have 1 more question about this and it is in my best interest for that to be not be in public forum.

Would you mind to send me your private email I can use?

Regards
 
tufaan said:
Thank you very much for your responses. I have 1 more question about this and it is in my best interest for that to be not be in public forum. Would you mind to send me your private email I can use?
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Sorry, I do not handle private messages or e-mails. If it is so private you should seek competent legal representation.
 
TheRealCanadian said:
Sorry, I do not handle private messages or e-mails. If it is so private you should seek competent legal representation.
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Not a problem. Thanks a lot for all your help.

I just don't know who to trust anymore. My past lawyer who turned out to be stupid is screwed me mutiple times in many ways, but he happen to be very famous and very good to most people. I don't know why this had to happen to me, I guess my luck.

My intent of private message was to do homework as much as possible before talking to a lawyer.

By the way I also talked a lawyer 2 days back and he was a complete idiot!!!

Accordingly to him my wife cannot get a green card based on my original 485 petition. This is over. Accordingly to him if I did not apply before my approval, she cannot apply anymore and it does not matter that we were married before the approval. This is complete CRAP!!!!

Upon asking him what is the other option, he said I have a green card so I can apply for her green card right away. She will get her green card within 4 years since she has to wait for the priority date to get current. But since she will have pending 485, she can have EAD and AP. Now this is also CRAP!!! based on what I have ready, she cannot apply for 485.
 
tufaan said:
By the way I also talked a lawyer 2 days back and he was a complete idiot!!!
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Look at it on the bright side - you're starting to gain some knowledge of your own to use to filter out what attorneys say. This is a good thing. When it comes to professionals of every stripe (doctors, lawyers, architects, accountants) I'm a great believer in the Reagan maxim of "Trust, but Verify". Clearly these individuals are (mostly) trained and knowledgeable, but it is not difficult in today's era of Google for you to take some time to verify and validate their suggestions. After all, you end up paying the consequences (and the bill).

I am not an attorney, but I think that my suggestions might be the best course of action. Your wife should impress upon her employer that her job will be ending in 15 months, and that while she doesn't need full GC sponsorship she does need the LC to allow her to extend her H-1. It's worth a try; while companies are downsizing they also want to keep good employees.

Second, you have 21 months for your PD to get current again. If it happens within 15 months, wonderful - if not your wife can file an I-485 with 245k relief up to 180 days after her employment ends or her I-94 expires. Be careful; after 180 days the 3-year bar kicks in, but if her H-1 job ends on the 25th of a month and her priority date does not become current until the 1st of the next month, 245k can cover that short period of out of status.

The situation is salvageable, I think. Hopefully some of the earlier EB3 India folks were approved in years past.
 
Application for Wife

Irrespective of the fact that my PD is not current will it hurt me in anyway if we still send an application for I-485 for my wife?
 
TheRealCanadian said:
Not really. It's likely to be rejected. Even worse, it might not be rejected until later.
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Will they take the application fees and then reject it?

My theory is if I cannot apply for 485, they should reject the application; not accept it, cash the check, find out since priority date is not available and then reject it.

I just want to take a chance if there is nothing to lose. I am wondering if there is nothing at all to lose, there might be something to get. If there is nothing to lose then just go for it, something good might come out of it.

What do you think?
 
tufaan said:
I am wondering if there is nothing at all to lose, there might be something to get. If there is nothing to lose then just go for it, something good might come out of it.
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Here's your worst case scenario: USCIS cashes the check and accepts the I-485. It's pending for a while waiting for the PD to become current, and in the interim her I-94 expires. Once the PD becomes current, the adjudicating officer checks the filing date and realizes that the I-485 was improperly filed and therefore must be rejected.

Here's the kicker - since it was a frivolous petition (it was not approvable when filed) it doesn't keep her in status. If it's been over 180 days since the I-94 expired, she cannot file a new I-485 and is subject to the 3-year bar (or 10-year bar).

You do NOT want to do this.
 
There is no meaning in sending I-485 when priority dates are not current, spend your resources and energy in direction where you are confident and expect favorable outcome
 
Follow to Join

RealCanadian and others,

Thanks for all your help on this matter. I did not yet give up so have been doing a lot of reading and research on this matter.

I just came across a page on the USCIS.GOV website abourt "follow-to-join" option for the spouse. Basically filing the I-824 application.

I would not find more specific information on this so decided to post here.

It seemed to me that the "follow-to-join" petition is to get green card for your spouse when you 485 is already approved. Exactly my situation; but it also seems like this applies when your spouse is not in USA. It does not seem to be very clear. I would appreciate if you could shed some light on this matter?

Can I file for I-824 even though my spouse is in the USA on a H1B visas?

The link below clearly states such cases do not have to wait for a visa number.

http://www.uscis.gov/portal/site/us...nnel=54519c7755cb9010VgnVCM10000045f3d6a1RCRD

Please shed some light on this.
 
You can file the I-824, but she still can't get the immigrant visa/GC until visa numbers are available, which might be some time around 2012-2015 for you (the number for her will be allocated based on you).
 
nscagony said:
You can file the I-824, but she still can't get the immigrant visa/GC until visa numbers are available, which might be some time around 2012-2015 for you (the number for her will be allocated based on you).
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The link I mentioned clearly states "your spouse will not have to wait any extra time for the visa numbers to become availble"

Am I interpreting this wrongly?
 
The text is phrased poorly. They mean to say you don't have to file I-130 and wait for the I-130 PD to become current. Instead, if your own EB-based PD is current she can get a visa right away. Neither is the case for you though. By law, an immigrant visa can only be issued if your (or her in case of I-130) PD is current. There is no way around it, sorry.
 
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