Applying for I-485 for spouse

[jupiturn]

I am in the fourth year of my employment (H-1B), doing my J-1 waiver. I opted to go down the NIW route, I-140 approved April 2004, I-485 pending, AP, EAD in hand. While doing all of this, I missed filing an I-485 for my wife. (t was an oversight on my part to not put in her I-485 with mine.)

Is it possible for me to file an I-485 for her now (separate from the original application I sent) and would it be considered "concurrent" since my I-485 is still pending?

She is currently also on an H-1B doing her J-1 waiver and in the 3rd year of her contract. Our plan is to move upon completion of my NIW (5 yrs) and her 4 year requirement for J-1 waiver. (Which coincidentally fall at the the same time)

How do I ensure that she gets an EAD at the same time?
Thanx in advance for your help!

 

[hadron]

> She is currently also on an H-1B doing her J-1 waiver and in the 3rd
> year of her contract. Our plan is to move upon completion of my NIW
> (5 yrs) and her 4 year requirement for J-1 waiver. (Which coincidentally
> fall at the the same time)

The problem with filing an I485 based on YOUR I140 for her could be that the only I485 a J1 waiver doc is allowed to file before the 3 years are up is her OWN NIW based I485.
Be sure to get knowledgeable counsel on this, but by filing any I485 not based on her own NIW there is a danger of forfeiting her entire waiver time.

She would probably have to continue on her H1b for a little bit after 3 year and 1 day. Once her waiver time is up, she can file an I485 based on your NIW (which will be pending until your service time is fulfilled). Even if your GC got approved before she has a chance to file, she can allways file a 'follow to join' petition (if she was married to you before your I485 approval which she is).

Getting the EAD after the filing of an I485 is not so much of a problem. It is around 100 days, if you don't have the EAD after 90 days you can get an interim EAD at the local office (which really blows bc you have to stand in line at 6am, depending on the office you are dealing with).

Beware of retrogression. There is some risk that the worldwide EB-2 category gets backlogged next year. That would preclude your wife from filing an I485. So with this in mind, you want to file her I485 on 3 years 1 day of her waiver committment.

ALL THIS IS MY INTERPRETATION OF THE LAW AND SHOULD BE TAKEN AS A MERE SUGGESTION. DON'T RELY ON IT WITHOUT PROFESSIONAL COUNSEL.