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EB3-Spouse join later
- Thread starter eb3_485
- Start date
Yes, you can apply for her later, but make sure she has her valid H4 to enter USA before your 485 is approved. If your 485 is approved while your wife is outside USA, her H4 status will be gone and she cannot apply for 485 unless she has her own independent visa (The other option is to use CP if she stays outside USA and you want to sponsor for her for her gc). So make sure to have her entering USA with her valid visa or H4 visa before you can apply for her 485 for her. If your 485 is approved and your wife is in USA, you can still apply for her for her 485 (my advice is for you to apply for her 485 quickly to maintain the status for her, otherwise, apply for 245k).
she has H4 Visa and she will be here on next month.My main concern is i belong to EB3(IND) and my PD is 03/2003.I don't know if she can apply for 485 ,EAD or do we have to wait till PD reaches for 03/2003 and apply @ that time.
USGC485 said:Yes, you can apply for her later, but make sure she has her valid H4 to enter USA before your 485 is approved. If your 485 is approved while your wife is outside USA, her H4 status will be gone and she cannot apply for 485 unless she has her own independent visa (The other option is to use CP if she stays outside USA and you want to sponsor for her for her gc). So make sure to have her entering USA with her valid visa or H4 visa before you can apply for her 485 for her. If your 485 is approved and your wife is in USA, you can still apply for her for her 485 (my advice is for you to apply for her 485 quickly to maintain the status for her, otherwise, apply for 245k).
eb3_485 said:she has H4 Visa and she will be here on next month.My main concern is i belong to EB3(IND) and my PD is 03/2003.I don't know if she can apply for 485 ,EAD
---she cannot
or
do we have to wait till PD reaches for 03/2003 and apply @ that time.
---yes and maintain your H1 status so that your spouse can be on H4 status, dont use EAD. if 6 year going to expire file 7th year H1 and your spouse H4 extension with your H1 Ext filing
TheRealCanadian
Volunteer Moderator
USGC485 said:From what I have seen on this forum (other cases), you can apply for her 485 for her along with your 485 receipt.
No. Priority Date retrogression means she cannot file the I-485 until your (and therefore her) date is current again. She'll need to maintain H-4 status, and you'll need to keep your H-1 alive.
I talked to my Lawyer and he told that I can apply for her after she comes here. Can I Believe my Lawyer?
TheRealCanadian said:No. Priority Date retrogression means she cannot file the I-485 until your (and therefore her) date is current again. She'll need to maintain H-4 status, and you'll need to keep your H-1 alive.
--- your lawyer is giving you wrong info, or he just wants the fees from for filing I-485 for your wife and that I-485 will be rejected by USCIS and he will get his fees from you.eb3_485 said:I talked to my Lawyer and he told that I can apply for her after she comes here. Can I Believe my Lawyer?
fast_gc_seeker
Registered Users (C)
All, you cannot apply for dependents 485 until primary's PD is current, period.TheRealCanadian said:No. Priority Date retrogression means she cannot file the I-485 until your (and therefore her) date is current again. She'll need to maintain H-4 status, and you'll need to keep your H-1 alive.
canadian, dependent would definately need to maintain H4 status but I dont think poster needs to maintain H1. He/she can use EAD.
TheRealCanadian
Volunteer Moderator
fast_gc_seeker said:canadian, dependent would definately need to maintain H4 status but I dont think poster needs to maintain H1. He/she can use EAD.
How can the dependent spouse retain H-4 status if the primary applicant is no longer in H-1 status?
fast_gc_seeker
Registered Users (C)
well, I've read threads where primary has used EAD befire dependents 485 is filed and later on filed 485 for dependent. I believe what matters is primary should be married to dependent before 485 and dosent matter if primary is on H1/EAD/blah. Ofcourse dependent should be inside US on some visa.TheRealCanadian said:How can the dependent spouse retain H-4 status if the primary applicant is no longer in H-1 status?
what would be status of somebody working on EAD[earlier on H1] and then gets married. will his/her dependent get H4?[assuming I-797 is still valid]
TheRealCanadian
Volunteer Moderator
fast_gc_seeker said:well, I've read threads where primary has used EAD befire dependents 485 is filed and later on filed 485 for dependent.
It's well-known that using the EAD for another employer violates H-1 status. No H-1 status for the primary alien, then H-4 status for the dependents is gone. This is established law.
If the I-485 got filed for the dependents, then either USCIS wasn't aware of the EAD use, or the I-485 filing was less than 180 days after the EAD was used and the dependent was automatically covered by 245k.
I believe what matters is primary should be married to dependent before 485 and dosent matter if primary is on H1/EAD/blah. Ofcourse dependent should be inside US on some visa.
What you or I believe is irrelevant. What Section 245 of the INA states is the only thing that matters. 245 clearly states that no one who is out of status may file an I-485, except if they are a) an immediate relative; b) covered under 245i relief; or c) an EB immigrant out of status for <180 days ie. covered under 245k relief.
Now odds are good that USCIS wouldn't be too curious about the dependent's maintenance of status, but you never know. There are three ways that this can be a problem.
Possibility #1 is that the spouse's H-4 I-94 expires. At this point she is sunk, and if she cannot file the I-485 (or extend the H-4) within 180 days, she needs to get the heck out of Dodge since if she hits 180 days she becomes ineligible to adjust status and she is subject to the 3-year bar so she cannot do CP.
Possibility #2 is that the H-1 holder gets laid off or quits and the employer informs USCIS about the H-1 revocation. At that point USCIS will probably have some clue that the H-4 holder is out of status.
Possibility #3 is that a nosy or bored USCIS examiner notices that the dependent I-485 was filed a long time after the primary, and kicks back an RFE stating, please provide evidence that the applicant's spouse was continually maintaining H-1 status at the time the dependent's I-485 was filed.
If #2 or #3 are the case, and the spouse is discovered to have been out of status for >180 days, then no 245k relief is available. The I-485 is denied and the spouse needs to do CP. If the primary alien is approved, she has no non-immigrant status to fall back on and needs to leave the US for several months. While USCIS may not notice a lot of things, it is extremely risky for one to base one's strategy on this happenning.
what would be status of somebody working on EAD[earlier on H1] and then gets married. will his/her dependent get H4?[assuming I-797 is still valid]
No, since the primary alien is not in H-1 status. This is why a lot of folks marrying in their home country are counseled not to let their H-1s lapse or become invalid before they get their spouse into the US.
TheRealCanadian
Volunteer Moderator
eb3_485 said:I Justed talked to My Lawyer and he says that my wife can apply for 485.
That's nice. Good luck!
eb3_485 said:I Justed talked to My Lawyer and he says that my wife can apply for 485.
I do not belive him. Take second opinion.
Keep H1 until she apply for I-485.
eb3_485 said:I Justed talked to My Lawyer and he says that my wife can apply for 485.
---- lawyer is giving wrong info if she wants she can apply it does not mean USCIS will accept your wife I-485, send the fees, pay lawyer fees and then you will know if USCIS accepts your wife I-485, get in writing from lawyer that he will return the fees paid by you to him and to USCIS if I-485 is not accepted, he should payback the USCIS fees back to you becase he is giving wrong advice and on his advice you are filing your wife I-485. is this liar /lawyer AILA attorney?
eb3_485 said:he works for my company and there is no fee i have to pay him except INS Fees
----- but will charge the company his filing fees
.I sent an email and talked on phone and reply was same that she can apply for I-485
----- If you belive herthen file and let others know when USCIS rejets the I-485 filing or accepts the I-485, why cant you ask the same question to other attorney as second openion, if you belive your company attorney no need to discuss