I-140, I-485 Concurrent filling

[dvila]

Hi guys,

I'm just wondering if it's possible to make a concurrent filling under EB2-NIW but I would like to submit my I-140 (I'm asking for the NIW) and my wife I-485 only. Once it's granted (I hope so) I can apply for my I-485. This allow me to split the expenses of this process.
I need the EAD for my wife but there's no problem with me (I've an H1 right now)
Thank you!

 

[jk0274]

Interesting question, but no, I don't think you can do that. Two reasons:

1- The I-485 instructions states on Page 1, Part 2A, that the derivative can file their I-485 with or after the principal. It doesn't say you can do it before.

2- A derivative application cannot be approved before the principal applicant, so it would follow that the derivative cannot apply before the principal.

There does not appear to be a clear statement explicitly forbidding a derivative applicant from applying before the principal based on the principal's immigrant petition. But the inability to do so is implied.

Think of it this way: If you apply for yourself now, and wait for a couple of months for you to save for your wife's application, and then apply for her I-485 plus I-765 (EAD), perhaps 4-6 months would have passed before she gets her EAD. If you apply together now, she can get her EAD in 1-3 months. If she finds a job immediately, she will have quickly made up the $1010 you paid for her now before the 6 months, which would have been the time it would take to get her EAD if you had waited to apply. In other words, the financial benefit to getting her EAD early may outweigh the benefit of waiting to apply to save up for her application costs, because in the time she waits, she could have made a few thousand bucks already, more than offsetting the $1010 cost.