Can GC holder wife file I-130/485 for husband who is in US last 11 months on B1, with expired I-94, awaiting I-539 extension decision

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newbie1234

Member
Can wife, who got GC 3 yrs ago, file I-130 and I-485 concurrently (since F2A is current), for husband who is in US last 11 mths on B1 and awaiting I-539 extension decision? Will USCIS accept if pending I-539 is attached. Overall context (if it helps) - marriage is 20+ yrs old, spouses reuniting after a long gap, and have a US born teenage child.
 
You currently have no status to adjust from, so it doesn't seem to me like you're eligible to file an I-485. Pending I-539, (pending extension of non-immigrant status) is not AOS eligible.

An alien is barred from adjustment of status if the alien is in an unlawful immigration status on the date of filing the adjustment application. Simply filing an application for an immigration benefit or having a pending benefit application generally does not put an alien in a lawful immigration status

A pending application to extend or change status (Form I-129 or Form I-539), a pending adjustment application, or a pending petition does not confer lawful immigration status on an alien. In addition, a pending application or petition does not automatically afford protection against removal if the alien’s status expires after submission of the application. The alien may have no actual lawful status in the United States and may be subject to removal proceedings unless and until the extension of stay (EOS) application, change of status (COS) application, adjustment application, or petition is approved.

USCIS Policy Manual - Unlawful Immigration Status at Time of Filing

It is interesting you went ahead and proceeded with entering the US on a NIV and decided to wait it out even though you were clearly advised against entering the US on a NIV with the mind of processing AOS back in 2008 and acknowledged here entering the US on a B1 wasn't the way to go.
 
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AOS from a non-Immediate-Relative category requires that the person be in status, and a pending EOS/COS is not considered status. If AOS is filed for someone with a pending EOS/COS whos previous status expired, USCIS will defer adjudication of the AOS until the EOS/COS is approved. See USCIS Policy Manual, Volume 7, Part B, Chapter 3, section E-1.

However, it may also bring up questions about whether he may have misrepresented himself about planning to leave when he applied for his EOS/COS.

(p.s. How did you get your green card? If you have been married 20 years, and you got your GC 3 years ago, that means you were married before you got your GC, which means he should be able to immigrate as your derivative beneficiary (if you immigrated in a category that allows derivative beneficiaries), without needing for you to petition him separately.)
 
You are right @newacct and thanks. He can file I-485 as derivative. I got employment based GC 3 yrs back, we were married before GC, and we are sort of reuniting after a long gap (10+years) where he lived in home country. Now the key issue is he entered US on B1 last Dec, filed a timely I-539 extension due to covid lockdown, and his 1 year on B1 ends in a month. If I file I-485, USCIS will perhaps first decide on I-539 and he may get I-94 valid till Dec only, so while I-485 is pending, he will go out of status and perhaps won't benefit of 245(K). Am I right? Any advice?
 
@Sm1smom - both had a roller coaster time, unable to reunite since then and many missed chances to file for GC. This time, both are sure of reuniting and staying in US. Hence this renewed effort to file GC for husband.....sooner the better of course, but if husband can't file AOS here (see my comment above), he can go back to home country and wait for I-130 or I-824 (which one is better?) or comes back on an NIV and file AOS on next visit.
 
newbie1234 said:
You are right @newacct and thanks. He can file I-485 as derivative. I got employment based GC 3 yrs back, we were married before GC, and we are sort of reuniting after a long gap (10+years) where he lived in home country. Now the key issue is he entered US on B1 last Dec, filed a timely I-539 extension due to covid lockdown, and his 1 year on B1 ends in a month. If I file I-485, USCIS will perhaps first decide on I-539 and he may get I-94 valid till Dec only, so while I-485 is pending, he will go out of status and perhaps won't benefit of 245(K). Am I right? Any advice?
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In that case, he should better file I-485 as your derivative. That way, not only will it save the cost of the I-130 and save you from needing I-864, but it will also allow the AOS to not depend on his I-539 approval. Yes, this is because employment-based AOS has 245(k), so he is eligible for AOS as long as he has been out of status or working illegally for less than 180 days since his most recent admission. For the purposes of 245(k), out of status days after filing I-485 do not count toward the 180 days (however, illegal working days after filing I-485 still count toward the 180 days). (See USCIS Policy Manual, Volume 7, Part B, Chapter 8, section E.) Since his I-94 has been expired for less than 180 days as of now, if he files I-485 now, he will be eligible even if his I-539 is denied (since his out of status days, counted until his I-485 is filed, is less than 180 days).
 
Oops I re-read your post; when does his B1 I-94 expire? If his I-94 hasn't expired yet, then he can file AOS in any category without needing to use 245(k) (one only needs to be in status at the time of filing I-485; going out of status while I-485 is pending doesn't affect the I-485 in any category).
 
Hugely helpful @newacct - are you sure "For the purposes of 245(k), out of status days after filing I-485 do not count toward the 180 days (however, illegal working days after filing I-485 still count toward the 180 days)" - I was trying to read this USCIS manual you refer to, let me read it again. And I assume they count all days, not just business days.

My I-94 expired in mid June, so about 150 days ago, and I have a I-539 pending which as you said will be likely denied if I file 485, but as you also said, out of status days after filing 485 DO NOT COUNT in 180 days limit, which is what I am trying to reconfirm. Plus I will need to engage a attorney asap.
2 queries:
1) So once I file 485, any evidence or explanation I should add to avoid RFE etc?
2) How much approx time to get EAD?
 
OK. So if I-539 was timely filed, he or she will be under period of authorized stay until it is adjudicated from US attorney general . I believe you are OK to file I-485 without having the need of invoking 245K
 
whitemimauz3 said:
OK. So if I-539 was timely filed, he or she will be under period of authorized stay until it is adjudicated from US attorney general . I believe you are OK to file I-485 without having the need of invoking 245K
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No, that’s not the case. He is not accruing unlawful presence, but that is different from being in authorized stay. He cannot apply for AOS from an out of status position (unless he falls under an exception like IR or 245k). If the i539 is later approved, then the period is retroactively put in status again.
From the official information leaflet for i539:

What if I file for an extension of stay on time but USCIS doesn’t make a decision before my I–94 expires?
Your lawful nonimmigrant status ends, and you are out of status, when your Form I-94 expires, even if you have timely applied
to extend your nonimmigrant status. Generally, as a matter of discretion, USCIS will defer any removal proceedings until after
the petition is adjudicated and USCIS decides your request for extension of nonimmigrant status. Nevertheless, DHS may bring a removal proceeding against you, even if you have an application for extension of status pending.
Even though you are not actually in a lawful nonimmigrant status, you do not accrue “unlawful presence” for purposes of inadmissibility under section 212(a)(9)(B) of the Immigration and Nationality Act, while your extension of status application is pending if it was filed prior to the expiration of your Form I-94.

https://www.uscis.gov/sites/default/files/document/guides/C1en.pdf
 
newbie1234 said:
Hugely helpful @newacct - are you sure "For the purposes of 245(k), out of status days after filing I-485 do not count toward the 180 days (however, illegal working days after filing I-485 still count toward the 180 days)" - I was trying to read this USCIS manual you refer to, let me read it again. And I assume they count all days, not just business days.

My I-94 expired in mid June, so about 150 days ago, and I have a I-539 pending which as you said will be likely denied if I file 485, but as you also said, out of status days after filing 485 DO NOT COUNT in 180 days limit, which is what I am trying to reconfirm. Plus I will need to engage a attorney asap.
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Yes. Read section E-4, under Failed to Maintain Lawful Status or Violated Terms of Nonimmigrant Status:
The counting of days out of status usually stops on the earliest of the following:
  • The day the alien properly files an adjustment application;
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Yes @newacct and appreciate it. I did read E(4) of the manual. I did not read rest of it yet and hope nothing else contradicts this. The same E(4) further says no need to attach any evidence to 485 except the usual supporting documents (marriage/birth proof, 864 affidavit for support by GC holder spouse, approved 140 of spouse). Plus also should file 765 for EAD and 131 for Parole. How long does EAD & Parole approval usually take (New Jersey address)
 
Hi @newacct - if I file 485 (without I-130) as derivative spouse of wife who has employment based GC, then do we need I-864 (filled by sponsoring spouse) OR I-944 (filled by petitioner i.e. myself along with sponsoring spouse's financial documents) OR both forms?
And in 485 Part 2, I should select 3(a) Employment based and attach copy of wife's Form 140 and copy of her green card - is that right?
Pardon me for being so specific, and hope to get your inputs.
 
@newacct - asking you above question since you wrote above and allow me to quote you - "In that case, he should better file I-485 as your derivative. That way, not only will it save the cost of I-130 and save you from I-864, but it will also allow the AOS to not depend on his I-539 approval". So what I infer is I don't need either 130 or 864, and I simply file 485 and 944 (and of course 765 for EAD, 131 for Parole)?
 
newbie1234 said:
Hi @newacct - if I file 485 (without I-130) as derivative spouse of wife who has employment based GC, then do we need I-864 (filled by sponsoring spouse) OR I-944 (filled by petitioner i.e. myself along with sponsoring spouse's financial documents) OR both forms?
And in 485 Part 2, I should select 3(a) Employment based and attach copy of wife's Form 140 and copy of her green card - is that right?
Pardon me for being so specific, and hope to get your inputs.
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I-864 is not needed since you guys are in an employment-based category (on your I-485 you would check the box in Part 8 #62d). I-944 is still needed.

Yes, in I-485 Part you would select 3a, and attach a copy of your wife's I-140 approval/receipt and green card.
 
That clarifies. Thanks @newacct - since you suggest Part 2, 3a and Part 8, 62d - I should not select Part 2, 9 a to c.
And I need not attach 864, coz that would be needed if wife had filled 130. In my case, I am filing 485 and 944 only.
Now I am trying to understand the logic as towhy wife (sponsoring spouse) does not have to file anything!!

Now...I-944 Part 4 asks if I have an approved I-140 and if I don't, it asks for my education details. I guess I have to go with latter since it's not wife's approved I-140 not mine.
 
You should check No in Part 2 #9a and skip 9b-c.

For I-944 I believe that you do have to put your education details, though there is some disagreement online about whether derivative beneficiaries of I-140 can say Yes. It's probably safer to say No and put your education details.
 
Thanks a ton @newacct - I am trying to understand the logic as to why wife (sponsoring spouse) does not have to file anything!!
Only I am filing 485 to do AOS from my B1 (wherein USCIS will determine themselves my 245K exemption) and 944
Of course both forms have her/our details including income. But it's still surprising that USCIS does not need any petition by her like I-130 or I-824!
Your comment?
 
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