Filing for 485/I140 while spouce is out of the country

T

Troylander

Registered Users (C)
Hi,
I graduated couple of months ago and started working in California on OPT (Optional Practical Training). The company will aply for my H1B on April first.
I got my PERM labor cirtificate recently and my layer said that I can file for 140/485/AP/EAD (my PD is current)

Here is my question.
My wife is currently in Canada. Our plan is to get her here on H4 visa (which will be no sooner than October 1st).

What are my options is terms of filing I140/485?
1- Can I apply for my 485 and her 485 at the same time while she is out of the country? (do you see any problem here?)
2- If Yes to question 1, does it make any problem for her getting H4 in october?

3- If No to question 1, what is the best option for me?
a) Applying for only myself , and then add her when she gets here? (Do you see any problem in this scenario)
b) Only apply for 140 and wait till october and then file for 485 for both myself and my wife when she is here.

I really appreciate your comments and help. This is very important information for me.
 
Troylander said:
Hi,
I graduated couple of months ago and started working in California on OPT (Optional Practical Training). The company will aply for my H1B on April first.
I got my PERM labor cirtificate recently and my layer said that I can file for 140/485/AP/EAD (my PD is current)

Here is my question.
My wife is currently in Canada. Our plan is to get her here on H4 visa (which will be no sooner than October 1st).

What are my options is terms of filing I140/485?
1- Can I apply for my 485 and her 485 at the same time while she is out of the country? (do you see any problem here?)
2- If Yes to question 1, does it make any problem for her getting H4 in october?

3- If No to question 1, what is the best option for me?
a) Applying for only myself , and then add her when she gets here? (Do you see any problem in this scenario)
b) Only apply for 140 and wait till october and then file for 485 for both myself and my wife when she is here.

I really appreciate your comments and help. This is very important information for me.
Click to expand...


You can file for your self now. Apply for her once she comes here. If she is Canadian She enter on TN and apply. But she will not be able to go out of US unless she gets AP.
 
Troylander said:
Hi,
I graduated couple of months ago and started working in California on OPT (Optional Practical Training). The company will aply for my H1B on April first.
I got my PERM labor cirtificate recently and my layer said that I can file for 140/485/AP/EAD (my PD is current)

Here is my question.
My wife is currently in Canada. Our plan is to get her here on H4 visa (which will be no sooner than October 1st).

What are my options is terms of filing I140/485?
1- Can I apply for my 485 and her 485 at the same time while she is out of the country? (do you see any problem here?)
2- If Yes to question 1, does it make any problem for her getting H4 in october?

3- If No to question 1, what is the best option for me?
a) Applying for only myself , and then add her when she gets here? (Do you see any problem in this scenario)
b) Only apply for 140 and wait till october and then file for 485 for both myself and my wife when she is here.

I really appreciate your comments and help. This is very important information for me.
Click to expand...


1- I-485 can not be filed by anybody who is out of the country.

2- N/A

3-

a) You can do that (not add her, but have her apply when she is in the US, there is no such thing as 'adding' in the I-485 process). Possible problems include 1- The PD is no longer current in October, or 2- Your I-485 gets approved before then (less likely though).

b) Again, you have to be comfortable that your PD will be current in October. The other problem here is that, if your H-1 doesn't come through (you work for a company, and are thus probably subject to the annual cap, and even though the 20,000 advanced degree visas took a couple of weeks to fill up last year, you never know how quickly they'll go this year). So you may need to file I-485 sooner rather than later should that occur.
 
jk0274 said:
1- I-485 can not be filed by anybody who is out of the country.

2- N/A

3-

a) You can do that (not add her, but have her apply when she is in the US, there is no such thing as 'adding' in the I-485 process). Possible problems include 1- The PD is no longer current in October, or 2- Your I-485 gets approved before then (less likely though).

b) Again, you have to be comfortable that your PD will be current in October.
The other problem here is that, if your H-1 doesn't come through (you work for a company, and are thus probably subject to the annual cap, and even though the 20,000 advanced degree visas took a couple of weeks to fill up last year, you never know how quickly they'll go this year). So you may need to file I-485 sooner rather than later should that occur.
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a)
1-If I apply for her in October will her file be processed the same time as mine?
Will she get the same PD as mine (assuming PD is current obviously) or our file will go to the end of queue?

2-If 485 gets approved before she comes, what should I do?
I have heard that if you are MARRIED before the approval of 485, wife can get the approval too (not starting the whole process and she can get it much faster than someone who marries to a green card holder). Is that true?


b)
If I get very unlucky and miss H1B this year, but apply for EAD and get EAD card before the expiration date of my current work authorization (OPT), how can I bring my wife to the country? What kind of visa should she apply for?
She is not a Canadian citizen, so TN is not an option.

Thanks alot
 
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Troylander said:
1-If I apply for her in October will her file be processed the same time as mine? Will she get the same PD as mine (assuming PD is current obviously) or our file will go to the end of queue?
Click to expand...

She will have the same PD as you, but her case may or may not be processed at the same time.

2-If 485 gets approved before she comes, what should I do?
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File an I-824 to start the consular processing route for her. She'll get an immigrant visa in Montreal.

I have heard that if you are MARRIED before the approval of 485, wife can get the approval too (not starting the whole process and she can get it much faster than someone who marries to a green card holder). Is that true?
Click to expand...

That is correct.

If I get very unlucky and miss H1B this year, but apply for EAD and get EAD card before the expiration date of my current work authorization (OPT), how can I bring my wife to the country? What kind of visa should she apply for?
Click to expand...

There would be no dependent visa for her in such a circumstance. She'd need an H or something similar on her own.
 
Thanks TheRealCanadian and jk0274.

1-So in your opinion considering the situation I explained, is there any negative point in applying for 485 for myself at this point? or it's better to wait till she comes and then apply together?

2-Assuming that I get H1B this year, if I apply for 485 now, does it make any problem for my wife in terms of getting H4?

3-RealCanadian said:"File an I-824 to start the consular processing route for her if your 485 gets approved before your wife comes to US. She'll get an immigrant visa in Montreal."
How long is the processing time for that? is it in the order of 1-2 month or it may take to one-two year?
 
Troylander said:
Thanks TheRealCanadian and jk0274.

1-So in your opinion considering the situation I explained, is there any negative point in applying for 485 for myself at this point? or it's better to wait till she comes and then apply together?
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I would wait, because 824 might take some time.
And here is why. This way once you get an H1 and she subsequently gets an H4, you can live here together. If you do get GC soon (and some people do get it very fast esp. if PD is current) and then PD retrogresses then she may have to wait a substantial indeterminate amount of time.

So plus is that you might get it faster applying now, vs losing on processing time until Oct after which you can apply if your PD is still current.

Minus is that maybe your PD is no more current in Oct so you may have to wait until the time it becomes current.

Bottom line is :
Would you want to be with your wife and wait until you get a GC, which might take longer

OR

Get a GC and wait for your wife to join you after a potentially long time?

Either ways, things with USCIS and visa availability are unpredictable and in some lucky scenario , you file GC, she comes here on H4 and you file for hers too and you get it after filing hers; but that could be luck and is definitely within the realm of possibilities; but if I were you, i would choose the first.

Troylander said:
2-Assuming that I get H1B this year, if I apply for 485 now, does it make any problem for my wife in terms of getting H4?
Click to expand...
Your filing 485 WILL not affect her getting H4. The important thing is that you SCORE an H1 in the what-is-now-a-lottery. Again consider point 1 too...

Here the risk IF you don't file GC and IF you don't win the H1B lottery, then it is a lose-lose case for you.

So maybe you could file for GC, hoping not to get it soon and stay here until you get it / AND OR also file H1 next year if you dont get it.

If you do file GC, wait UNTIL the H1B lottery is drawn. If you are one of the winners DO NOT file GC now. This way you can get wife on H4

If you do not WIN the H1B lottery, file the GC just in time, just 1 month before your legal stay gets over, so you can file an H1B for the next fiscal and can get wife here.

Troylander said:
3-RealCanadian said:"File an I-824 to start the consular processing route for her if your 485 gets approved before your wife comes to US. She'll get an immigrant visa in Montreal."
How long is the processing time for that? is it in the order of 1-2 month or it may take to one-two year?
Click to expand...
Could take any amount of time. Who knows if PD retrogresses for your country of birth AFTER you get GC, in which case her getting a GC would depend on the time for the PD to become current as well as the 824 processing time.
 
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Hi aaifor and RealCanadian,

I do not understand exactly what the downside of him applying for GC now, The way that I see it, As I140 is a very long wait around 1 year average, so it seems almost impossible for him to get his GC very soon.

Moreover, due to the large number of people getting Green card based because of 6 month FBI check deal, his PD may become retrogressed in a couple of months and then if the H1B lottery gets in to difficulty, then he is in the worst situation.

My suggestion is that, He should apply for 140/485 immediately, With a very high probability, he will get his H1B as he can submit use the 20000 quota and he can file on the first day. His GC will not come soon because of the I140 situation.... The worst case scenarios that may happen is if he does not get H1B which in that case he will immediately initiate consoular processing for his wife, In this case his wife can not enter the states anyways.

Whenever his wife gets here, as her PD, the scenario Jan2007, I highly doubt that EB2 ROW gets retrogressed that much that she get in to trouble.

Poorya

1. That he does not get H1B in that case he can immediately initiate consoular processing for his wife
2.
 
Thanks everyone for helping/suggesting and commenting.

RealCanadian what do you think about this situation?

I defenitely do not want to spend a long time to bering my wife to the country. So it seems consular processing is a bad choice for me.

Considering all these facts what would you do if you were in my situation? Another option for me is just to apply for I140 and postpon 485 a little bit. If I don't apply concurrently for 140 and 485, do I need to wait till 140 gets approved then apply for 485?
 
Troylander said:
I defenitely do not want to spend a long time to bering my wife to the country. So it seems consular processing is a bad choice for me.
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I don't disagree with you. But your problem really has nothing to do with when you file your I-485, it has everything to do with getting an H1. If you don't get an H1, I'm not sure what basis you have to get your wife to the US.

And filing your I-485 neither improves nor worsens your chances of an H-1. But if you don't get the H-1, the I-485 filing means your GC is that much closer, and therefore your wife's GC and being together is that much closer.

So I cannot see any good reasons not to file the I-140/485 right now, if your PD is current. And if you do not get the GC, then immediately file an I-824 to start CP for your wife once your I-485 is approved.
 
Your country

What country are you from?

Since your PD is current you can expect approval in 12 months.
If you expect your GC to clear in a year, you should apply right away.
Apply for your wife for CP. This will also help you if you do not get H1 and your opt runs out.

If you get H1/H4 you can change her application to AOS or travel to Canada for CP when the time comes.
 
TheRealCanadian said:
And if you do not get the GC, then immediately file an I-824 to start CP for your wife once your I-485 is approved.
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RealCanadian, what do you mean by that?
Do you mean if "I DO NOT GET H1" then immidiately start CP?

In that case can I start CP for my wife before my 485 is approved? or what you meant was wait to see what's gonna happen for H1 then apply for 485 for yourself and at the sametime for my wife's CP.

Another question that I had was if I apply for 140 now and postpone 485, should I wait for my 140 to get approved then apply for 485 or I can apply after 2 months regardless of 140 status?

Thanks again,
Troylander
 
Russ124421 said:
What country are you from?
Click to expand...
I am from Iran, so my PD is current at the moment.

Russ124421 said:
Since your PD is current you can expect approval in 12 months.
If you expect your GC to clear in a year, you should apply right away.
Apply for your wife for CP. This will also help you if you do not get H1 and your opt runs out.
Click to expand...
If I apply for her CP now, I think she can not enter the country on H4 even if I get my H1. Am I right?
She has to wait till my 485 gets approved, right?
 
Troylander said:
Do you mean if "I DO NOT GET H1" then immidiately start CP?
Click to expand...

Yes. If you get the H-1, then once you are in H-1 status your wife enters on an H-4 and you immediately file the I-485 for her.

Another question that I had was if I apply for 140 now and postpone 485, should I wait for my 140 to get approved then apply for 485 or I can apply after 2 months regardless of 140 status?
Click to expand...

You can apply after two months, provided your PD remains current. It might not.
 
You can apply for 140 now. Apply for 485 a few months later. Submit a 140 receipt with the 485 application.
You do not have to wait for 140 approval if you did not file concurrent.
 
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