Approved but spouse yet to file.

H

HeyWhereIsMyGC?

Registered Users (C)
Well this is my scenario.
PD: Aug 2002/ EB3/India. Got approved on 06/16/2007.
I preponed my marriage to June from May, after seeing the June bulletin. Got H4 stamped, arrived in US with my wife. Was preparing docs to file for my wife, retrogressed again on July 1st. Now I dont know what to do?

Looks like my H1 is not valid anymore, so my wife's H4 might not be valid too. Her I-94 expires on May 2009. I am not sure if she can still reside in US till October and apply for I-485, hopefull my proiority date becomes current then.

If anyone know similar situation, please post your experiences.
 
It looks like,your spouse is out of status as of now.
Since you did not even send out the I-485 application for her,before your approval of AOS.So your H1 became invalid as soon as your I-485 got approved.So her H4 automatically is invalid.
But apply for her i-485 before 180 days out of status,so atleast you can claim 245(i or k not sure).You need a good immigration lawyer like Mr.Khanna,to get you out of this rut!
Good luck! and BTW HAPPY MARRIED LIFE!!!!
 
I think your wife is out of status the moment your GC got approved.
You can no lnoger filed her GC application based on your PD.
She has to get her own PD under family based category 2A(spouse and son of permenet residents) by filing I-130. The latest VB was showing June 2002 for this category.
You need to talk to a lawyer and see if there is a way for your wife to remain legally in the country
 
Hey, nope....your wife should be fine....

check out the posts from this user, MohitFL....there is a thread in TSC - that's still active...

He filed for I485 for his wife....after his GC approval.....using follow to join clause...
 
The H4 is invalidated when the primary's AOS is approved.
If the spouse does not have an independent status in US, he/she have to go home country and apply a follow-to-join at a overseas counsulate.
 
I'm in the same boat as you. I replied to your post in MohitFL thread. Basically, there are not many options. She is out of status the moment you got your I485 approved. 245(k) allows 180 days from the date of your approval to file your wife's petition provided the PD gets current. After that you have to pursue follow to join by filing form I824. You can try H4 to F1, but thats risky bcoz 1) she is currently out of status and therefore may not be able to change status with in the country and 2) she is married to a permanent resident and may not be able to change status outside the country.

Lets hope the visa numbers get current for our priority dates in Oct to get out of this mess.
 
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This is complicated situation. You need to get in touch with some nice lawyers like Mr. Khanna or Ms. Murthy as soon as possible.

I am not sure but check with lawyers to explore the possibility of getting her admissison in some community collage and get her F1. This may be cost effective and buy her some time. Although her H4 is invalid but I guess she may still be able to get H4 as 180 days have not expired yet.

Also keep all her documents ready including medical. If not earlier, most likely in October you should be able to file her 485. Explore with lawyers the possiblity of using the 180 day grace period.
 
Please update this thread if you find more information on this. I'm wondering what would happen if I apply for change of status for my wife to F1 say on the 179th day as the last option. Can she stay in the country beyond 180 days since her F1 petition is pending?
 
The key question is whether you got married (as in your marriage certificate) before GC approval (an in your green card notice). If you did she is eligible for EB based green card, else Family based green card.

Apparently L1 and H1 are non immigrant visas with "dual intent" where you can convert to GC, but F1 is not. So you should explore it before depending on it.

I am in somehwat of a similar boat, but my GC is NOT yet approved and I am on H1. I got married on June 6 and my wife is here on L1. I couldnt file her 485 because of july mess.Actually her 485 file reached on July 2 at 7.55 AM and we dont know whats gonna happen, for now I assume it will be rejected. So, if my GC gets approved, she needs to continue in L1 until October when I am hoping to file hers since my PD is 12/01 EB2.

Your wife can stay on the basis of a pending 485. So once you file she will be ok. But you need to make a decision in consulation with an attorney(a good one) if you need to accumulate out of status days for your wife or not.
 
HeyWhereIsMyGC? said:
Well this is my scenario.
PD: Aug 2002/ EB3/India. Got approved on 06/16/2007.
I preponed my marriage to June from May, after seeing the June bulletin. Got H4 stamped, arrived in US with my wife. Was preparing docs to file for my wife, retrogressed again on July 1st. Now I dont know what to do?

Looks like my H1 is not valid anymore, so my wife's H4 might not be valid too. Her I-94 expires on May 2009. I am not sure if she can still reside in US till October and apply for I-485, hopefull my proiority date becomes current then.

If anyone know similar situation, please post your experiences.
Click to expand...
The main problem as others have pointed out is that your wife is now out of status.

She has to get into a legal status asap - either F or H or L.

Do NOT depend on the 180 days rule to make her illegal stay "go away" -- who knows how and when that rule would change or what the interpretation would be.

Follow-to-join is probably the safest method without risking her legal status (485 can get denied if USCIS finds out about the "out of status" period). Play it safe and consult with an attorney to make sure you are doing the right thing.
 
Hi

Your PD is Mar-02. You need to file 485 for your wife using FB under 2A Category. FB for 2A is current (Jun-02 is current Date and your is Mar02).

You dont need to wait, just go ahead and file I-485 for your wife.

Pls correct me if my understanding is incorrect. Am also in the same boat :)-

Thanks
 
Update

I did talk to a good immigration attorney, this is what i understand from the conversation.
Looks like "Out of status" is not as bad as "Unlawfully present" even though in both cases one might get deported if we get into any legal trouble. In our case, she is "out of status" till her I-94 expires and "Unlawfully present" after the I-94 expires. "Out of status" might not cause 485 denial.
He gave me couple of options:
1. Send her out of the country immediately, apply 485 through consular processing when the my priority date is current, i think he meant following-to-join.
2. Wait till 180 days from my date of approval, if the priority date becomes current by then, can apply for 485 and continue to reside her based on pending 485. If the date is not current till 180 days is over, then follow option 1.
3. Stay here till the I-94 expires, meanwhile apply for H1B, if H1B is approved then go back, get H1 stamped and come back. He says H1B stamping should not be a problem even though "Out of status" for awhile. apply for 485 whenever the dates are available.

Also he did mention about 245(k), which would provide 180 day blanket for being "out of status". Also he said something like, 180 day period starts again everytime the visa status is invalid. I might not really sure about what he meant.
 
ndantu said:
Hi

Your PD is Mar-02. You need to file 485 for your wife using FB under 2A Category. FB for 2A is current (Jun-02 is current Date and your is Mar02).

You dont need to wait, just go ahead and file I-485 for your wife.

Pls correct me if my understanding is incorrect. Am also in the same boat :)-

Thanks
Click to expand...

I did talk to an immigration attorney about my case, but forgot to ask about the FB 2A and its priority dates. I think the priority date for FB 2A is based on the date when the application was filled for the applicant, which for my wife, not for me. The reason is FB 2A is family based and whereas mine as employment based.

Again I am a layman in these issues and I DIDNOT talk to the attorney about this. So I might be totally wrong. If you or anyone had a legal opinion on this, please let us know.
 
HeyWhereIsMyGC? said:
I did talk to a good immigration attorney, this is what i understand from the conversation.
Looks like "Out of status" is not as bad as "Unlawfully present" even though in both cases one might get deported if we get into any legal trouble. In our case, she is "out of status" till her I-94 expires and "Unlawfully present" after the I-94 expires. "Out of status" might not cause 485 denial.
He gave me couple of options:
1. Send her out of the country immediately, apply 485 through consular processing when the my priority date is current, i think he meant following-to-join.
2. Wait till 180 days from my date of approval, if the priority date becomes current by then, can apply for 485 and continue to reside her based on pending 485. If the date is not current till 180 days is over, then follow option 1.
3. Stay here till the I-94 expires, meanwhile apply for H1B, if H1B is approved then go back, get H1 stamped and come back. He says H1B stamping should not be a problem even though "Out of status" for awhile. apply for 485 whenever the dates are available.

Also he did mention about 245(k), which would provide 180 day blanket for being "out of status". Also he said something like, 180 day period starts again everytime the visa status is invalid. I might not really sure about what he meant.
Click to expand...

My attorney also suggested the above scenarios for my wife. He also suggested the option of COS from H-4 to F-1 within the country. With F1, she needs to show non-immigrant intent and strong ties with her home country. So, the risk here is, if F1 gets denied, she would immediately start accumulating "unlawful presence" and may get deported if she stays in the country. With unlawful presence you are subjected to 3yr/10yr bar. The only option left would be to do CP.

He suggested filing I824 now and see if the dates get current for my PD in the next 180 days. If it gets current, file AOS within the country. There might be some delay in getting the I485 adjudicated since I have filed I824. But, it should not matter in the bigger picture.

if the PD doesn't get current in the next 180 days, there are 2 options:

1) She can go to home country and wait till the PD gets current and get GC in home country.

2) Do nothing and wait till April. File H1 in April (assuming her I94 is still valid). If H1 gets approved, she can leave the country and get it stamped in the home country. Once she re-enters the country the 245(k) will be reset. That means, she can file her I485 petition whenever the dates become current after she re-enters. However, She has to wait till Oct 08 to go for H1 stamping. Meanwhile, since I824 was already filed, she can go and get her GC in the home country if the PD becomes current. Basically, after the 180 day period pursue either CP or H1 whichever is faster.

He also warned me about one more thing - there is a potential risk that the law for interpreting unlawful presence may change. It seems there is a proposal to count out of status time as unlawful presence, but thats not been implemented yet.
 
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Now that we the dates are available, have any of you filled for your spouse. I have started my process but unfortunately looks like my attorney doesnot know about 245(k). I did find information about 245(k) but nothing from the uscis or dhs websites. I do find forms for 245(i) which requires $1000 for filing fee. As per murthy site there is no fee for 245(k) so i am trying to find out the forms, if any, to be filed. do any of you have information on this?
 
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