Applied for Follow-to-join with EB3 and I-131, Can I convert EB3 to EB2?

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crazygal

Registered Users (C)
Hello All,

I am desperately in help as I am lost and helpless.

In concise, I got GC in 2007, on EB3 category. Married in 2003. As soon as I got GC, I applied for follow-to-join and waiting for the priority date to be current. In the meantime, in 2009 applied for visiting visa for my husband. Got 10 years multiple visa. And meanwhile, applied for I-131 too, in Nov. 2010.

So he visited US in 2009 Nov with 6 months entry and while he was here applied for an extension and got another 6 months. So he left in November before the date. And again came in Feb. 2011 and they only gave 2 months entry with no extension message on the I-94.

So now, I know he needs to wait until the priority date comes. Not sure when the dates will be current. Is there any way I can try him to enter US? We are badly trying to have kids and time is running out as we are being apart from each other. Can I convert EB3 to EB2, even though I got GC and only for my husband, as he is my dependent?

Please help me......
 
If you were married before you received an employment based GC, you should have filed to have him included. Also the 2007 priority dates for spouse of GC holder have been current recently and in fact dates in 2007 are now current. Check the visa bulletin.

I believe you have made numerous mistakes and really need to work with an attorney.
 
You can't convert to EB2 after the GC is approved. Your GC was already counted against the EB3 quota for that year, and that cannot be changed even if you also had an EB2 application pending before the GC.

You should have filed an I-130 in family 2A as soon as you got your GC, in addition to the follow-to-join. Then whichever one becomes current first, your husband takes up that one. Hurry up and file an I-130 now, so it should be approved before you become a citizen, then next year when you (hopefully) become a citizen you can upgrade it to reflect your citizenship status and he should get a consular interview a few months later.

In the meantime, in 2009 applied for visiting visa for my husband. Got 10 years multiple visa.
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When he applied for the visa, did he mention that he's married to a GC holder? If not, he'll be screwed when they catch his failure to mention you.
 
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Concerned4us said:
If you were married before you received an employment based GC, you should have filed to have him included.
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Not possible while husband is outside the US. With the husband outside the US, her GC must be approved first, then the husband can be added via follow-to-join.

However, the question here is what her status was in 2003-2007. If she had H1B or L1 status at that time, her husband could have entered the US in H4 or L2 status.
 
Concerned4us said:
If you were married before you received an employment based GC, you should have filed to have him included. Also the 2007 priority dates for spouse of GC holder have been current recently and in fact dates in 2007 are now current. Check the visa bulletin.

I believe you have made numerous mistakes and really need to work with an attorney.
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Concerned4us, Thank you for the response. The dates for EB3 is currently 15th Apr 02 and for I-130 is 08 Jun 07. Follow-to-join applied in 2007 and my priority date is Jun 2003 and I-130 priority date is November 2010. Am I missing something? Which dates should I look? Please correct me if I am looking wrong?

I know I should have included him after marriage but at that time he has HIV. So not included but now it was waived.

Thank you and please respond, if I am missing something.
 
Jackolantern said:
You can't convert to EB2 after the GC is approved. Your GC was already counted against the EB3 quota for that year, and that cannot be changed even if you also had an EB2 application pending before the GC.

You should have filed an I-130 in family 2A as soon as you got your GC, in addition to the follow-to-join. Then whichever one becomes current first, your husband takes up that one. Hurry up and file an I-130 now, so it should be approved before you become a citizen, then next year when you (hopefully) become a citizen you can upgrade it to reflect your citizenship status and he should get a consular interview a few months later.


When he applied for the visa, did he mention that he's married to a GC holder? If not, he'll be screwed when they catch his failure to mention you.
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Jackolantern, Thank you for the response. I know, I should have applied for I-130 when I applied for Follow-to-join. NOt known at that time, however applied last year in November 2010. So what you are saying is, I can't do anything else, meanwhile other than waiting for the follow-to-join, my priority date is Jun 2003 and I-130 priority date November 2010.

Also my question is, My priority date is June 2003 and applied follow-to-join in 2007. So that means, I should wait for the priority date June 2003 right? Why Concerned4us said priority date 2007? Is there a priority date for follow-to-join will be 2007, as I applied in 2007, like I-130? Because I-130's priority date is November 2010, as I applied then? Please guide me, even lawyer didn't say anything. Please help!
 
Jackolantern said:
When he applied for the visa, did he mention that he's married to a GC holder? If not, he'll be screwed when they catch his failure to mention you.
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I think, I mentioned(because I filled the application for his visiting visa) that I am GC holder, not sure though..... Do you think my husband can try to visit me after 6 months? Thank you.....
 
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crazygal said:
So what you are saying is, I can't do anything else, meanwhile other than waiting for the follow-to-join, my priority date is Jun 2003 and I-130 priority date November 2010.
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You wrote I-131 in your thread title and the original post, so I didn't realize you filed an I-130. I thought you applied for a reentry permit with form I-131, so you could visit him abroad for an extended time.

Is there a priority date for follow-to-join will be 2007, as I applied in 2007, like I-130? Because I-130's priority date is November 2010, as I applied then?
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The priority date and EB category for the follow-to-join will be the same old priority date as your EB3 green card process.

What prevented him from moving to the US in the years since you got married 2003 until you got the GC in 2007? He should have been able to get a spousal visa such as H4 or L2 during that time. What went wrong?
 
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Jackolantern said:
You wrote I-131 in your thread title and the original post, so I didn't realize you filed an I-130. I thought you applied for a reentry permit with form I-131, so you could visit him abroad for an extended time.


The priority date and EB category for the follow-to-join will be the same old priority date as your EB3 green card process.

What prevented him from moving to the US in the years since you got married 2003 until you got the GC in 2007? He should have been able to get a spousal visa such as H4 or L2 during that time. What went wrong?
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Jackolantern, Thank you for the response. He came with H4 after the wedding. But didn't apply for GC as he has HIV.

Sorry, by mistake I wrote I-131, applied for I-130 in November 2010, as I didn't know about this earlier whenI applied for follow-tojoin. So what do you suggest now? I should only wait for the priority dates of EB3 and I-130? Or do I have any other options to bring him in?

Thank you
 
After a 6-month absence outside the US, he'll probably be able to return with the tourist visa. Or if he's qualified he could try for his own H1B or L1.

But I am saddened that you're planning to have kids who probably will be born with HIV. Unless there is some kind of in vitro technology that can detect or remove the HIV before fertilization or implantation.
 
Jackolantern said:
After a 6-month absence outside the US, he'll probably be able to return with the tourist visa. Or if he's qualified he could try for his own H1B or L1.

But I am saddened that you're planning to have kids who probably will be born with HIV. Unless there is some kind of in vitro technology that can detect or remove the HIV before fertilization or implantation.
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Jacklontern, Thank you for your time and response. No, unfortunately he is not qualified for H1 as he is not educated. And for the kids, going for In Vitro. Tried 5 times, didn't work. So he should be here in order for me to try until I get pregnant. I don't have much time left though..... :-(
 
She was married and on H1B for a significant amount of time before her GC was available. I do not understand why they were living apart when he qualified for H4 and would have been in the US if that were the case. An H4 does not have to reside continuously in the US on that status.

At the very worse, she could have filed for him as the spouse of a LPR as soon as she received her GC. In fact, it would not surprise me if this may have been done and she not realize it since she is so fixated on EB2/EB3.

This entire situation seems very confused - at least I am since the processing for the spouse of an LPR is relatively simple and this has been going on for 4 years. Consequently, I think that she needs to use an attorney to make sure she takes advantage of the fastest processing possible at this point.

ETA: I just noticed the later postings on HIV; I know these polices have changed relatively recently. It is absolutely essential that OP use an attorney given this history.
 
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Concerned4us said:
She was married and on H1B for a significant amount of time before her GC was available. I do not understand why they were living apart when he qualified for H4 and would have been in the US if that were the case. An H4 does not have to reside continuously in the US on that status.
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A few posts above she mentions that he was in the US on H4. When her GC got approved (or when she switched to EAD, if she did that before GC approval) her H1B status was terminated, which in turn terminated his H4. And he didn't file I-485 because back then he would have been disqualified due to HIV, so he had to leave.
 
Jackolantern said:
A few posts above she mentions that he was in the US on H4. When her GC got approved (or when she switched to EAD, if she did that before GC approval) her H1B status was terminated, which in turn terminated his H4. And he didn't file I-485 because back then he would have been disqualified due to HIV, so he had to leave.
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Exactly, Jackolantern is right...
 
Check

Hi Jackolantern,

On visting visa my husband came to US for 6 months and then I got extended for another 6 months and approved. And then left US. Again when he tried to come in Jan, they only permitted 2 months, mentioning on the I-94 that "no ext.". So left before the period specified. But now the question is, if he tried to come to USA after 6 months, will they let him enter USA? At least for couple months like last time?

God! Why we have to go through all this? Why can't spouses live together? So unfair!

LMK!
 
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