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Derivative I-485 pending. Primary approved. Will this come under retrogression?
- Thread starter nath_r
- Start date
logicators
Registered Users (C)
Unfortunately, it does effect her. Please see:
http://www.immigration-law.com/Canada.html
09/17/2006: Visa Number Retrogression: "What Does It Mean to Me and My Family?"
Most of the die-hard visitors of this web site understand the meaning of visa retrogression and its impact on his/her immigration process. However, surprisingly this reporter learned during the past few days that there were a large number of people who had no clear-cut understanding of the meaning and were confused. The follwong Questions and Answer smay be considered too basic to some of the visitors but may be helpful to those who do not have as much knowledge as they do. Here are some of the questions and answers on the impact of the employment-based visa retrogression to an individual:
Q: The employment-based I-485 application has been approved for me but my wife's and children's applications are still pending because of documentation or other issues. What will happen to them on October 1, 2005? A: The priority date for family members (spouse and children) is determined by and same with the principal alien's. If the October Visa Bulletin shows their priority date is later than the cut-off, the USCIS or the American Consular officers cannot approve their pending I-485 until the first date of the month when their priority date is available in the monthly visa bulletin.
Q: I received the I-485 approval notice in the mail on September 30, 2005. How will my green card be affected on October 1, 2005? A: When the USCIS adjudicates the I-485 applications at the final stage, they first check with visa numbers with the U.S. Department of State either via phone or computer before they approve the applications. Accordingly, once people receive an approval notice, they already took out the visa number and are safe.
Q: I have already filed I-485 application but my spouse has yet to arrive and is scheduled to arrive here on September 30, 2005. Can my spouse submit his/her I-485 after he/she arrives? A: No. At the time I-485 is received by the Service Centers, a visa number must be available. Since the chances are that his/her I-485 application may not be able to be delivered to the Service Centers before the end of the date of September 30, 2005, he/she will not be able to file the application and must wait until the visa number becomes available again in the future. Q: Can the family members stay and wait in the U.S. after their status expired while they wait for the visa number? A: No, unless they have a valid status of their own, they are not allowed to remain in the U.S.
Q: The principal alien filed a labor certification or petition filed before April 30, 2001 and after a long delay in the labor certification process and immigration service I-140 and I-485 applications, my I-485 has been approved. My spouse and children will arrive here on September 30, 2005 on a dependent visa status. Once they arrive here, they will have to stay with me even after their status expires while they wait for the visa numbers. What will happen? A: Since the labor certification application or petition was filed by you, the principal alien before April 30, 2001, you and your family members are protected and grandfathered by Section 245(i). Unlike the principal alien, the family members are not subject to the physical presence requirement on December 20, 2000 for the benefit of 245(i) relief, and when the visa number becomes available, they will be able to submit their I-485 applications together with I-485A with the payment of $1,000 fine for each family members who are older than 14 years of age. This does not mean that they are not illegal aliens and they cannot be arrested and deported once they are detected. Accordingly, to get the 245(i) benefits, such family members should remain underground and not be detected by the law enforcement agencies or immigration officials.
Q: My labor certification has just been approved and I received the approved labor certification on September 29, 2005. Can I file my green card application? A: Yes or No. If you have prepared all the papers for filing of I-140/I-485 for you and your family members before the deadline of the commercial overnight delivery services drop-off or pick-up time, you can file it. Usually commercial drop box deadline is 5:00 p.m. or 6:30 p.m. depending on the location of the drop boxes. If you miss the drop box deadline, then you can run to the local main station or international airport station of the Fedex or UPS or DHL and timely ship out even after the drop box deadline in the city or town. Remember that unless it is physically delivered to the Service Centers within September 30, 2005, Friday, your case will be rejected and you will suffer many years of delay to file your green card application.
Q: My I-485 has been transferred to the local district office for interview and received a notice of interview date of October 3, 2005, Monday. Since they sent out notice before October 1, 2005, will I be O.K? A: No, and you will not be O.K. Even though chances are not too good, but, you or your legal representative can work on advancing the interview schedules before October 1. Some attorneys are working with other colleague attorneys who have an interview schedule for their clients before October 1, 2005 to switch the interview schedules with the consent of the local district office. Worth trying!
Q: I-485 applications for my family and myself have been approved but we are still in India or China. Since the visa number will not be available from October 1, 2005, what happens if we return after October 1, 2005? A: When you return, you will not be admitted as any nonimmigrant (for instance, H-1B) nor advance parole. At the same time, you are still not considered a permanent resident until you are admitted to the U.S. as a lawful permanent resident. In normal circumstances, the immigration inspectors at the airport will allow you to come into the country on a "deferred inspection" or "parole" status just to allow you to appear at the local district office to complete the green card process. When the Service Center approved your application, they took out the visa number for you but the adjudication may not be completed in some situation until you return and complete the admission process at the local district office. It is thus critically important that you return to the U.S. before October 1, 2005 not to take any chances. The same is true with those who have been issued an immigrant visa before October 1, 2005. They should enter the U.S. before October 1, 2005.
Q: I am in H-1B and filed a labor certification application about 365 days ago. Since the labor certification has yet to be approved, I cannot file my green card application for long time. I am approaching my six-year limit of H-1B. Can I extend the H-1B beyond six years even if the labor certification has not been approved and no petition or application is pending with the USCIS? A: Yes, you can extend your H-1B "indefiniely" in one-year increment until your green card is finally approved or denied.
(This Q & A will continue)
http://www.immigration-law.com/Canada.html
09/17/2006: Visa Number Retrogression: "What Does It Mean to Me and My Family?"
Most of the die-hard visitors of this web site understand the meaning of visa retrogression and its impact on his/her immigration process. However, surprisingly this reporter learned during the past few days that there were a large number of people who had no clear-cut understanding of the meaning and were confused. The follwong Questions and Answer smay be considered too basic to some of the visitors but may be helpful to those who do not have as much knowledge as they do. Here are some of the questions and answers on the impact of the employment-based visa retrogression to an individual:
Q: The employment-based I-485 application has been approved for me but my wife's and children's applications are still pending because of documentation or other issues. What will happen to them on October 1, 2005? A: The priority date for family members (spouse and children) is determined by and same with the principal alien's. If the October Visa Bulletin shows their priority date is later than the cut-off, the USCIS or the American Consular officers cannot approve their pending I-485 until the first date of the month when their priority date is available in the monthly visa bulletin.
Q: I received the I-485 approval notice in the mail on September 30, 2005. How will my green card be affected on October 1, 2005? A: When the USCIS adjudicates the I-485 applications at the final stage, they first check with visa numbers with the U.S. Department of State either via phone or computer before they approve the applications. Accordingly, once people receive an approval notice, they already took out the visa number and are safe.
Q: I have already filed I-485 application but my spouse has yet to arrive and is scheduled to arrive here on September 30, 2005. Can my spouse submit his/her I-485 after he/she arrives? A: No. At the time I-485 is received by the Service Centers, a visa number must be available. Since the chances are that his/her I-485 application may not be able to be delivered to the Service Centers before the end of the date of September 30, 2005, he/she will not be able to file the application and must wait until the visa number becomes available again in the future. Q: Can the family members stay and wait in the U.S. after their status expired while they wait for the visa number? A: No, unless they have a valid status of their own, they are not allowed to remain in the U.S.
Q: The principal alien filed a labor certification or petition filed before April 30, 2001 and after a long delay in the labor certification process and immigration service I-140 and I-485 applications, my I-485 has been approved. My spouse and children will arrive here on September 30, 2005 on a dependent visa status. Once they arrive here, they will have to stay with me even after their status expires while they wait for the visa numbers. What will happen? A: Since the labor certification application or petition was filed by you, the principal alien before April 30, 2001, you and your family members are protected and grandfathered by Section 245(i). Unlike the principal alien, the family members are not subject to the physical presence requirement on December 20, 2000 for the benefit of 245(i) relief, and when the visa number becomes available, they will be able to submit their I-485 applications together with I-485A with the payment of $1,000 fine for each family members who are older than 14 years of age. This does not mean that they are not illegal aliens and they cannot be arrested and deported once they are detected. Accordingly, to get the 245(i) benefits, such family members should remain underground and not be detected by the law enforcement agencies or immigration officials.
Q: My labor certification has just been approved and I received the approved labor certification on September 29, 2005. Can I file my green card application? A: Yes or No. If you have prepared all the papers for filing of I-140/I-485 for you and your family members before the deadline of the commercial overnight delivery services drop-off or pick-up time, you can file it. Usually commercial drop box deadline is 5:00 p.m. or 6:30 p.m. depending on the location of the drop boxes. If you miss the drop box deadline, then you can run to the local main station or international airport station of the Fedex or UPS or DHL and timely ship out even after the drop box deadline in the city or town. Remember that unless it is physically delivered to the Service Centers within September 30, 2005, Friday, your case will be rejected and you will suffer many years of delay to file your green card application.
Q: My I-485 has been transferred to the local district office for interview and received a notice of interview date of October 3, 2005, Monday. Since they sent out notice before October 1, 2005, will I be O.K? A: No, and you will not be O.K. Even though chances are not too good, but, you or your legal representative can work on advancing the interview schedules before October 1. Some attorneys are working with other colleague attorneys who have an interview schedule for their clients before October 1, 2005 to switch the interview schedules with the consent of the local district office. Worth trying!
Q: I-485 applications for my family and myself have been approved but we are still in India or China. Since the visa number will not be available from October 1, 2005, what happens if we return after October 1, 2005? A: When you return, you will not be admitted as any nonimmigrant (for instance, H-1B) nor advance parole. At the same time, you are still not considered a permanent resident until you are admitted to the U.S. as a lawful permanent resident. In normal circumstances, the immigration inspectors at the airport will allow you to come into the country on a "deferred inspection" or "parole" status just to allow you to appear at the local district office to complete the green card process. When the Service Center approved your application, they took out the visa number for you but the adjudication may not be completed in some situation until you return and complete the admission process at the local district office. It is thus critically important that you return to the U.S. before October 1, 2005 not to take any chances. The same is true with those who have been issued an immigrant visa before October 1, 2005. They should enter the U.S. before October 1, 2005.
Q: I am in H-1B and filed a labor certification application about 365 days ago. Since the labor certification has yet to be approved, I cannot file my green card application for long time. I am approaching my six-year limit of H-1B. Can I extend the H-1B beyond six years even if the labor certification has not been approved and no petition or application is pending with the USCIS? A: Yes, you can extend your H-1B "indefiniely" in one-year increment until your green card is finally approved or denied.
(This Q & A will continue)
logicators
Registered Users (C)
Yes