Citizen filing for H1B Spouse (not currently working)

R

rjo1

Registered Users (C)
I will be Citizen next month and would like to file for my wife who is on H1B. Her H1B visa in passport has expired, but she has her extension i.e. I-797+I-94 (new) valid will Oct 2008. So technically she is OK on H1B.

However she is not working for the past 9 months due to surgery and maternity and she has non-paid leave of absence from her employer.

Now I would like to file GC for her.

1). File GC in India: If we move to India, can I file her GC in India after staying in India for some time. Would they ask her to present her H1B based W-2's even though this is Family based Petition.

2). File GC in US: We file petition while we are in the US. How much time does Advance Parole take, as we have to travel to India. Would they ask her to present her H1B based W-2's. Can we get Advance Parole while we are physically in India.

3). How are the FingerPrints taken for GC if we are in India.

I am trying to the find the best possible option for my spouse GC, since we are moving to India.

Thanks.
 
If you are moving to India then she's not eligible to get a Green Card. Green Cards are for people who wish to live in the USA, they are not a "vistor visa for the wife of a US citizen."
 
Why don't you file for GC while you are in US? Also apply for Advance parole, so if you need to do emergency travel you could. Mind you, you should wait until you get your wife's GC to do any further travels (I am thinking you are going for more than 1 month visit). It is normally taking anywhere from 6 months - year to get GC if your wife's name does not get stuck in name check. If you go to India on Advance parole, you should know that you may get an interview letter while you are away.. Its upto you, but I would not want to jeopardise GC process and would rather wait to travel to India after GC.
 
My project calls for 7-9 months. I will still be keeping my house/car/bk accounts here in the interim.
 
To put this is perspective:

I will be US Citizen in April. My wife does not want to work anymore and just wants to give her time to the kids.

Currently, she is technically on H1B and has time off.
I have a new project coming up in India in July for about 7 months. Once we are in India, she has no way of coming back except with GC.

1. So should we do I-130+485 AOS in April while in US. If we do not get GC till July, then she can go to India on AP in order to come back. This is assuming she gets AP in 60-75 days. We will go with Attorney in the US in this option.

2. Other Option is that we apply I-130 with Consular Processing and then go to India and we can do her Interview and get GC in India. Here the issue, will her H1B missing work come up? Will I-864 be an issue, since I am also in India. If we get stuck in CP, then we have no access to attorney.

We are in CA and I understand that in Option 1, they are interviewing in 2-3 months. So we are confused.

Thanks.
 
rjo1: Your's is a tricky situation. Applying for a Green Card for your wife now, and you might get it before you move to India in July, at a push. Its likely that your wife will not have her GC in time for your to move though.

However, AP isn't really an option either. Your wife cannot really move to India for 7 months while her Green Card is processing. AP is meant for small trips, not a 7 month stay.
 
To answer your second question.
Will H1B missing work come up?
Answer: Does she have a valid reason to miss work, for example complications in pregnancy etc. If yes, then you could explain that reason if and if it comes up during the interview.
I-864: Will you be able to prove that you are only going to India for a project and you will be getting paid in US and you have full intentions of remaining in US as a resident? I am not a lawyer, but ask this question to a lawyer for more help.
 
I had filed an I-130 for my wife in 2006 on basis of my GC.

Now before I file her new I-130 and other docs as a US Citizen, should I withdraw the old I-130 or let it be as is.

I am not going to upgrade it as it takes long and does not move concurrently with the I-485.

Also what is I-485 A?

Thanks.
 
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