What happens after I824?

M

Marco Jahn

New Member
Hello,
We have the following situation:
My wife has an H1B visa and lives in the USA. I have an H4 visa, but I still live in Germany.
My wife's employer would like to sponsor a green card for her (EB3) Current status: The I140 was submitted in May 2020 (but has not yet been processed) and in September 2020 the I485/I765/I131 was also submitted.
In I140 and I485 I am mentioned as husband. However, in the I485 form (Part 5, No.10) the question "Is your current spouse applying with you? with a "No" answered. As far as I was able to research this, I think that's right, because I'm supposed to complete the Consular Processing in Germany.

As far as I know, the I824 ("Application for Action on an Approved Application or Petition") should then be submitted for me and not I130. I hope I got that right: Whether I824 or I130 has to be applied for depends on whether we were already married when my wife's green card process started, right ?

Unfortunately, I have found in the internet almost only cases of people who have completed the I130+I485. What happens after the application of the I824 ? Does the process of the I824 take shorter or longer than that of the I130/I485 ?
 
First of all, I-485 is for Adjustment of Status in the US. If you are doing Consular Processing abroad, you won't use I-485.

Since you married before she becomes a permanent resident (it's when she becomes a permanent resident, i.e. gets her green card, that counts, not when her process started), you qualify to immigrate as her derivative beneficiary (on her employment-based immigration case). That's where the I-824 comes in. If she (the principal beneficiary) does AOS in the US, and you (the derivative beneficiary) does Consular Processing abroad, I-824 is filed to have USCIS send the petition to NVC for Consular Processing after they approve her green card. If you managed to get in the US and want to do AOS, you would simply file I-485 at any time, and not need I-824.

Now, if she wanted, it's also possible for her to petition you to immigrate through family-based immigration as the spouse of a permanent resident, after she gets her green card. In that case, she would file I-130 if you were doing Consular Processing abroad, or I-130 and I-485 if you were doing AOS in the US.

If you were doing AOS, then you could file I-485 at the same time as her I-485, or while her I-485 is pending, so it is likely faster than waiting until she gets her green card to file I-130. But in the case of her doing AOS and you doing CP, it would have to wait until she gets her green card before your CP can begin anyway, so the speed is not that different than her petitioning you separately with I-130. There are some differences though; for example:
* I-824 is slightly cheaper
* If you immigrate by being petitioned by a spouse, and you are married for less than 2 years at the time you get your green card, you will become a conditional permanent resident with the need to do Removal of Conditions in 2 years' time; whereas if you immigrate as a derivative beneficiary, you will become a non-conditional permanent resident no matter how long you've been married.
* For family-based immigration she will need to sign an I-864 affidavit of support, whereas on her employment-based immigration case, I-864 is not necessary. However, an I-944 public charge form (or the equivalent State Department form) will still be needed in both cases.
 
I see this post is a while old. I just started processing 1-824. What are the processing times like for that and then the consulate processing bit
 
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