AOS and wife

A

aos_query001

Registered Users (C)
I am an Indian citizen and I currently live in the state of Minnesota. I am on H-1B visa for past 2 and half years.

I have a question regarding my greencard application that my company has filed for me.
My I-140 got filed in July 04 and is still pending. I got married in July 04 but my wife hasn't yet entered US. She is planning to come in to US for first time on H-4 visa in January 05 when I am travelling to India.

My lawyer is suggesting that I file my AOS now and my wife can file her after she is in US. The reason he is insisting on that is that the visa numbers may retrogress in the January timeframe and we may not be able to file our AOS without a big delay.
I am afraid about many things-
What happens if my AOS gets approved before my wife comes over here to US.
What happens if my AOS gets approved when I am in India in December.
What happens if my wife when she applies for H-4 visa gets refused because my AOS is filed.
What happens at the port of entry to me and my wife if my AOS is approved.

I want to get an opinion on whether it's a good idea to apply for AOS now or wait for a couple of months and apply along with my wife. The risk there though is a possibility of ending up in a huge delay.
 
aos_query001 said:
I am an Indian citizen and I currently live in the state of Minnesota. I am on H-1B visa for past 2 and half years.

I have a question regarding my greencard application that my company has filed for me.
My I-140 got filed in July 04 and is still pending. I got married in July 04 but my wife hasn't yet entered US. She is planning to come in to US for first time on H-4 visa in January 05 when I am travelling to India.

My lawyer is suggesting that I file my AOS now and my wife can file her after she is in US.
----- your lawyer is correct file your I-485 before Jan 2005 (if you are EB3 case from India china) so that you can become eligible to use AC21 when your I-140 gets approved and I-485 pending more than 180 days, if you file now you will also become eligible for EAD and AP

The reason he is insisting on that is that the visa numbers may retrogress in the January timeframe and we may not be able to file our AOS without a big delay.
---- Lawyer is correct
I am afraid about many things-
What happens if my AOS gets approved before my wife comes over here to US.
---- dont worry it is not going to be approved in 2-3 months
What happens if my AOS gets approved when I am in India in December.
----- you have not filed I-485 and expect USCIS to approve your I-485 ? it is November and it will take 5-6 days to collet you all documents to file for I-485, take photographs doing medicals then lawyer will again take 4-5 days to prepare the I-485 pakage then it has to reach Service center(2-3 days) then they have to send I-485 fing reciept( can take 12-15 days) and November will be over do you thing USCIS will approve I-485 in 2 months???
What happens if my wife when she applies for H-4 visa gets refused because my AOS is filed.
--- H4 is based on your H1 status, H4 will not get refused becase of your I-485 or AOS filing
What happens at the port of entry to me and my wife if my AOS is approved.
------ Your wife will not be admited, you will be admited and will send you to diffred Inspection and you can go to Local USCIS office with I-485 approval and can get GC stamp in your passport
I want to get an opinion on whether it's a good idea to apply for AOS now
--apply ASAP, if possible bring your wife to US in December on H4 first/ second week and file Her AOS also when she reaches US on H4
or wait for a couple of months and apply along with my wife.
----- Not advised, you may not be able to file I-485 if you are EB3 case and if you wait till jan 2005.
Best option:Apply your I-485 now, bring your wife in December and file her I-485 with your I-485 filing reciept .
The risk there though is a possibility of ending up in a huge delay.
Click to expand...
 
Thanks for your input. I understand that it may be idiotic to think that AOS may get approved in 2 months. But what is the severity of something like that happening is what concerns me. I will have to kill myself if it gets approved and my wife can't enter US for years!!

So, how does that work? Can my wife not enter for years if my AOS gets approved and she isn't in US yet?

Also, she is going to come to US only in early Jan. She is not going to be able to come before that. Do you still think I should apply I-485 now?

I would like to hear about the worse case scenerio where my AOS gets approved while she hasn't yet applied for H-4 or entered US.

Thanks
 
aos_query001 said:
So, how does that work? Can my wife not enter for years if my AOS gets approved and she isn't in US yet?

Also, she is going to come to US only in early Jan. She is not going to be able to come before that. Do you still think I should apply I-485 now?

I would like to hear about the worse case scenerio where my AOS gets approved while she hasn't yet applied for H-4 or entered US.

Thanks
Click to expand...

Yes, you should apply your I-485 NOW. It's very unlikely that your AOS will be approved before Jan 2005. Normally after applying I-485, scheduling fingerprint takes about a month. Then the fingerprint date will be another month down the line. In that case, if you apply now, your fingerprint date will sometime at January 2005. If you wife cannot come before your FP date, then I would recommand you to postpone your FP date. USCIS won't approve your AOS without FP check. So I guess you understand that even after filing I-485 you have some kind of control to postpone your AOS approval.

On the other hand, if your AOS get approved before she comes to USA with H4, she should not use her H4 to enter. In that case, you have opt for consular processing (follow-to-join) for her. She will get entry directly using her immigration visa (green card).
 
Thanks a lot for your input. At this point I have a good amount of confidence in supporting that I should be filing I-485 now. But I have one more concern. What are the chances of my wife's getting refused on her H-4 visa given that my AOS application is going to be pending (on file) at that time?

Also, everytime I have entered US the immigration officer has asked me for how long do I intend to stay in US. I always answer saying that I am planning to stay in US until my H-1B visa expires. Now, that I am going to have my AOS on file what should I be answering?

Thanks a lot
 
aos_query001 said:
Thanks a lot for your input. At this point I have a good amount of confidence in supporting that I should be filing I-485 now. But I have one more concern. What are the chances of my wife's getting refused on her H-4 visa given that my AOS application is going to be pending (on file) at that time?
Click to expand...

It's unlikely that her H4 will be refused because you filed for AOS. H1/H4 is dual-intend visa. Consulate is never going to ask whether her husband applied for AOS or not. In either case it's not an issue.
BTW, I am surprised that you got married on July 2004 and she still did not apply for her H4 visa. It's always better to apply for H4 immediately after wedding and obtain H4 visa - even if she does not plan to come USA immediately. Last minute visa application is always a bad idea, because if something happens in that time you won't have time to manuever. For H1/H4 visa application she does not need to show any air-ticket.


aos_query001 said:
Also, everytime I have entered US the immigration officer has asked me for how long do I intend to stay in US. I always answer saying that I am planning to stay in US until my H-1B visa expires. Now, that I am going to have my AOS on file what should I be answering?
Click to expand...

H1/H4 is dual intend visa. After you file AOS, you can always say that you filed for AOS and therefore intend to live in USA until AOS decision is made.
 
I think if visa dates retrogress by Jan 2005, you cannot apply 485 for ur wife, even if u had applied a 485 for urself. u have to wait till priority date becomes current, before u apply for ur wife. Am I right? Any comments?
 
I have the same question.
Can anyone tell me -
If visa dates retrogress by Jan 2005, can't I apply 485 for my wife, even if I 've had my 485 applied for myself? Do I have to wait till priority date becomes current, before I apply for my wife?
 
aos_query001 said:
I have the same question.
Can anyone tell me -
If visa dates retrogress by Jan 2005, can't I apply 485 for my wife, even if I 've had my 485 applied for myself? Do I have to wait till priority date becomes current, before I apply for my wife?
Click to expand...

My guess is that dependent's PD is same as primary's PD. But this guess could be wrong - especially in a situation when dependent does not apply with primary.
 
pralay said:
My guess is that dependent's PD is same as primary's PD. But this guess could be wrong - especially in a situation when dependent does not apply with primary.
Click to expand...

In all cases, the dependent's priority date is the same as the primary's.
 
Hi RealCanadian...Thanks for the information.

Does that mean that even if visa numbers retrogress before my wife enters US (on H-4), her AOS application is going to get accepted without going into the delay loop?
 
hi aos query001

what is ur priority date? if ur priority date is after the cut off date when visa numbers retrogress in jan 2005, then ur wife cannot apply even though u applied ur I-485 but if ur priority date is before the cut off date after retrogression, then it will not effect ur wife

give me ur priority date?
 
Hi aos_query001
then definitely ur wife cannot file I-485 after december 2004 or whenever the dates retrogress assuming u r EB3 category
 
So, if my wife can't file her 485, then what happens? Can she still live in US? On what status? What happens if my AOS gets approved?
 
she can stay in USA on H4 visa as long as u keep ur H1 status. But once ur I-485 is approved, she will lose her status. Before u are approved, either let her file her I-485 before Jan 2005 or even if she doesn't file her I-485 before Jan 2005, get her here on H4 (hope u r still on H1 visa) and then convert her to H1 visa so that even if u become GC holder then she can have a status of her own thru H1.

otherwise file ur I-485 now and then apply for follow to join process for ur wife. She can go to consulate in india and take her GC when it gets approved which mostly takes an year after u get approved.
 
aos_query001 said:
So, if my wife can't file her 485, then what happens? Can she still live in US? On what status? What happens if my AOS gets approved?
Click to expand...

If she is in USA on H4, cannot file I-485 and your I-485 get approved, then she will be out of status. However, this kind of cases are covered by 245(k) if out of status period is less than 180 days. So basically from the day of your approval she will able stay upto max 6 months without filing I-485. If she stays more than that and cannot file her I-485, that will be a problem for her GC application in future.

So, I would recommand you to bring her in USA on Jan 2005 anyway (on H4). Then you can decide what the best route is, depending on the situation at that moment.
 
If your wife wants to come in Jan 2005 then you have read what others have posted and gave you correct opinion because of being from India, china and in being in EB3 and your PD is also 2003(as you posted) and EB3 cut off for India, China is expected from 2002 (nobody knows from what date of 2002 and will only come to know from Visa bulletin in few days) file your I-485 NOW and if possible bring your wife on H4 let her file I-485 and she can go back to India, she needs to be in US when she files I-485 and you have lawyer and he can prepare her I-485 package in advance if you provide her documents to lawyer, once she comes to US she needs to get Medical done( many doctors will give you medical in 2 days) she has to get photographs, sign the I-485 petition, attach the copy of her I-94, sign G28 and you can fill other Forms roughly before she arrives and the day USCIS receives her I-485 package she can go back to India and can come in Jan/Feb.
*****Browse from the day your visa applied to gain knowledge and experience instead of posting only when you run into problems
 
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