Can Secondary Applicant file AoS after Primary GC approved

[JennaNi]

Hi, Everyone

Please I have an urgent question regarding I-485 filing. I talked to 2 lawyers but get a mixed message. My husband's I-140 was approved back to Mar'07 and his lawyer is going to file I-485 for him this month.
I am working in London office because my company failed to get H1B for me. I am preparing to file L1 visa to come back to the State but I have to wait until Feb 2008 (that is when I work oversea for a year).

My question/concern is 1. if my husband's I-485 (GC) get approved while I am still in London, can I still file I-485 based on his petition after I come back to the State use L1 visa.
2. If I can do so, is there a time limit for that?

We have been married 8 years alreday so the condition is that we are married before he filed his I-140 and I-485.
Our lawyer said I can still file AoS even after my husband's I 485 get approved but my company lawyer said I can only do family based immigration visa (which is very long wait) if my husband I-485 get approved before I file my I-485.

Please anyone can help me on this issue. I am very confused now

 

[TheRealCanadian]

Our lawyer said I can still file AoS even after my husband's I 485 get approved but my company lawyer said I can only do family based immigration visa (which is very long wait) if my husband I-485 get approved before I file my I-485.

Your lawyer is correct; the company's attorney is not.

 

[JennaNi]

Hi, Thanks RealCanadian for your reply.
So you mean I can still file I-485 based on my husband's petition even after he received the green card.
Is there a time limit regarding when I can file then?

I kind understand what my company lawyer said that if my husband got the GC then I become spouse of a GC holder so need to go through the family based immigration process. That is where I get confused. Could you please confirm and let me know where I can find the related legal publication regarding this issue. Thank you very much again.

 

[TheRealCanadian]

So you mean I can still file I-485 based on my husband's petition even after he received the green card. Is there a time limit regarding when I can file then?

Yes, and there's no time limit, provided that you remain married to him.

I kind understand what my company lawyer said that if my husband got the GC then I become spouse of a GC holder so need to go through the family based immigration process. That is where I get confused.

This only applies if you get married after your spouse's GC is approved.

Think about it this way, the situation you are in is like that of every other derivative beneficiary. No derivative can be approved until the primary is approved; so that for some period of time every spouse becomes the spouse of a GC holder before his or her I-485 is approved. For some people like my wife, it was approximately 45 seconds. For others, they wait weeks or months. It doesn't matter - for some period of time, they are the spouse of a GC holder, and that doesn't automatically reclassify them as FB2A.

Could you please confirm and let me know where I can find the related legal publication regarding this issue.

Tell this so-called attorney to read up on "Follow to Join", and if he demands anything further, tell him that you require that he pay you a retainer before you educate him further on how to do his job.

But to be honest, you do not need your company attorney for a single thing after you enter the US on your L-1. Your immigration process is totally distinct from your employer.

 

[doesitmatter]

the one other thing you may have to be aware of is that you can file your 485 only when PD is current. So, if your husband files now or in Oct, you need not necessarily be current in Feb(esp with these jackasses in USCIS) or whenever you apply.

 

[JennaNi]

Hi, guys

thanks very much for your reply, really appreciate it. 2 more questions:

So RealCanadian, for me to apply AoS after holding L1 visa back to U.S. I still need to wait for the Priority Date of my husband's I-140 to become current, right??

What if I couldn't get L1 visa back to the State next Feb (may get rejected, just in case) but my husband's I-485 get approved so what visa can I get to come back to U.S then, not H4 cause he will be no longer H1B holder. Is then the only option is to do Consular processing which may take up to 2 years?

Thanks again.

 

[TheRealCanadian]

So RealCanadian, for me to apply AoS after holding L1 visa back to U.S. I still need to wait for the Priority Date of my husband's I-140 to become current, right??

That's correct.

Is then the only option is to do Consular processing which may take up to 2 years?

By and large, yes - but what makes you think it takes two years?