Applying for a Green Card as a dependent

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sunnyrock75

Registered Users (C)
Both me and wife are currently on valid H-1B visas working for employers A and B respectively. Can one of us have our employer start the GC process and include the spouse as a dependent on the primary applicant's GC petition or do each of us need to start separate individual GC applications through our respective employers as both of us are on H-1B visas. Is there a way to work around this problem or starting two separate applications is the only way out? Would appreciate your replies. Thanks!
 
sunnyrock75 said:
Both me and wife are currently on valid H-1B visas working for employers A and B respectively. Can one of us have our employer start the GC process and include the spouse as a dependent on the primary applicant's GC petition or do each of us need to start separate individual GC applications through our respective employers as both of us are on H-1B visas. Is there a way to work around this problem or starting two separate applications is the only way out? Would appreciate your replies. Thanks!
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Strictly speaking, only one of you need to apply for the GC. However, under the current law, you cannot be on a H1B status for more than 6 yrs, unless you have applied for LC atleast 365 days prior to the expiration of the 6th yr H1B. If you are like most of us in this forum (born in India and stuck with many yrs of retrogression), then the person who has not started the GC process by the end of the fifth yr cannot extend the H1B beyond the 6th yr. That person will then be forced to fall to a H4 status till you can file for I-485. In the I-485 stage, both of you can file at the same time and both can get the EAD card and both can work.
On the other hand, if one or both of you are not born (remember the word is "born" and not "citizen" - you can be an Indian citizen, but not be born in India) in India, and you qualify in the EB2 category, then you should be able to file for I-140 and I-485 at the same time (after labor approval) and the other person (who has not started the GC process) can also file for the I-485 and get the EAD for working without a H1B.
 
Thanks for ur reply Columbus_Dude. We r Indian citizens born in India. Also, both of us have Master's degrees from US universities. Could u explain the the last half of ur previous reply. I was a little lost with ur explanation. Let me rephrase my question: Is there a US immigration law which states that married non-immigrant aliens currently on H-1B visas have to both apply for GCs individually through their employers as neither one of them can be claimed as a dependent on the primary applicant's GC application due to their H-1B status. We both have currently exhausted a little more than a yr of our H-1B visas of the maximum 6 yr limit.
 
sunnyrock75 said:
Thanks for ur reply Columbus_Dude. We r Indian citizens born in India. Also, both of us have Master's degrees from US universities. Could u explain the the last half of ur previous reply. I was a little lost with ur explanation. Let me rephrase my question: Is there a US immigration law which states that married non-immigrant aliens currently on H-1B visas have to both apply for GCs individually through their employers as neither one of them can be claimed as a dependent on the primary applicant's GC application due to their H-1B status. We both have currently exhausted a little more than a yr of our H-1B visas of the maximum 6 yr limit.
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There is no law that states that if both applicants are on H1B - then one cannot be another's dependent. Since both of you are MS and both have more than 4+ yrs on your H1 - an idea case would be for one of you to apply for Labor Certification right away (make sure that you word it carefully - that way you will qualify for EB2 filing for I-140) and then apply for I-140. If your case is straight forward, and no RFEs are triggered, then you should be in a position to file for I-485 (AOS) in 6 - 8 months (going by how fast I-140s are being approved nowadays - but this could change down the lane). By this time if EB2 for India becomes current, both of you can apply for your I-485. The person who does not apply for the GC process should try and be in the H1B status as long as possible - so that (God forbid), if the I-485 application is denied, the other person can start the GC process (but remember - LC must be applied 365 days before the end of the 6th yr).

That being said, let me add that my opinion is not a substitute for a lawyer's advice and please don't go by what I have said. Talk to a lawyer and discuss if this is a good approach (ofcourse the lawyer will say that it is better for both to apply blah, blah - but stick to your question as to if the above is possible).

One downside to this is that you never know how things are going to be two yrs or even 1 yr from now - things could get better - or they could get worse. So you have to take your chances.
 
Thanks a lot for ur reply Columbus_Dude. Really appreciate it. Yeah...we were also planning to consult an experienced immigration attorney and find out the best way to handle this situation and also explore all the other possibilities.
 
filing 485

Columbus_Dude, I am in a similar situation and I was wondering if you can give me some advice..

My wife and I are both on H1 and my I-140 was just approved. I can now file the 485 since the priority date is now current. Should I file the I-864 (dependant) form for my wife? I am getting some conflicting info on whether I have to file the 864 along with the two 485 forms

Thanks in advance...
 
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