I-485 approved and wife on H4

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tammy2

Registered Users (C)
One of my friend got married last month. He came here back on H1 and his wife also came along with him on H4. He applied I-485 in December 2002. Now His I-485 got approved last week when he was in the process of applying I-485 for his wife. Can she apply for I-485 now? This is because once he gets the approval his H1 status is gone so the H4. Is she out of status now? He is scared because one cannot apply for I-485 when some one is out of status.
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one of my friend has the same case.... his attorney asked him not to get the passport stamped till they ask him to do .... I think there is some way around for that.. till the time they are married and his wife is here on H4 before the approval dat...
 
Sorry to hear about that. Yes, her H4 status is gone automatically because of his 485 approval.

Tell your friend to ask his lawyer if he can apply for her I-485 with 245(k) -- less than 180 days because their marriage took place before his 485 was approved. Tell him not to worry. Also tell him not to let his wife to leave usa until her 485 is approved. Just apply for only 485 and EAD. no AP is needed because of 245(k). Please ask him to talk to his lawyer who knows about 245(k).
 
His Status aldready changed since he applied 485 filled in 2002.
Her spouse is beneficiary derivate of his 485. she is eligieble to get GC here, he can file her doc without any fear of her status.
(He should have filled her 485 the next day of her arrival.)


Good Luck
 
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USGC485 said:
Sorry to hear about that. Yes, her H4 status is gone automatically because of his 485 approval.

Tell your friend to ask his lawyer if he can apply for her I-485 with 245(k) -- less than 180 days because their marriage took place before his 485 was approved. Tell him not to worry. Also tell him not to let his wife to leave usa until her 485 is approved. Just apply for only 485 and EAD. no AP is needed because of 245(k). Please ask him to talk to his lawyer who knows about 245(k).
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We are worried here because you cannot apply I-485 when you are out of status. 245(K) covers previous out of status situations not present one.

Here some of his friends suggested to wait for stamping. But the problem is status changes as soon as you approved. ADIT process of stamping just a formality. So I am thinking that delaying in stamping does not make any difference.
redneck said:
Has your friend actually applied for his wive's I485, or he is still in the process of aplying?
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He is planing to apply next week.
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tammy2 said:
He is planing to apply next week.
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I'm afraid it wouldn't be possible. You are right she is out of status now. The only straight forward way to act in this situation is filing a follow to join for her (I824), but it is quite painful way since she will have to go through Consular process. It means that they will have to be apart for almost a year.
The alternative is to get H1B for her.
 
Dear Tammy,

To support what I wrote was based on knowledge of following info and my understanding. plz read and if it can help ur friend. if possible do update us it may help other ppl.

Good Luck
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Otherwise eligible immediate relatives.
If otherwise eligible to immigrate to the U.S., immediate relatives may adjust status ( have a green card application approved) even if they may have done any of the following:

Worked without permission.
Remained in the US past the period of lawful admission and filed for adjustment of status while in an unlawful status because of that.
Failed otherwise to maintain lawful status and with the proper immigration documentation.
Have been admitted as a visitor without a visa.



http://www.visa2003.com/greencard/adjustment.htm

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Good Luck
 
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I know about this. We had previous discussion about this. but some one mentioned that this is applicable for family members of citizens and not to the GC holders. but it is provided on Green card of WW.USCIS.GOV

Some one was mentioning that she not out of status as some can enter the US on H1/H4 if the I-485 is approved while the applicant is overseas. But the question here is her H4 status is still valid or not. Very confusing.
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tammy2 said:
Some one was mentioning that she not out of status as some can enter the US on H1/H4 if the I-485 is approved while the applicant is overseas. But the question here is her H4 status is still valid or not. Very confusing.
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I noticed someone in this forum suggested (or gave some hints) that she is not out of status and she still can apply I-485. I specifically asked him/her the question - but did not get any asnwer posted from him/her. But I myself have not come across any document/site/memo that supports that argument. From my understanding she is technically out of status. But being out of status does not mean that she cannot apply I-485. Probably there are some avenues, but I am not sure what they are.
 
As long as she's out of status for less than 180 days she can file I485 under 245(K). I don't agree with some one who said that 245 (K) covers only past defaults. The fact is that for the purpose of I-485 filing your status questions are considered ony since your last entry into US. The past defaults are not even looked into. 245 (K) is applicable even if the person is presently out of status but has not accrued more than 180 days of illegal presence since his or her last entry into US.
Though I'm not a lawyer. But I have done lot of research on this and have talked to lot of eminent lawyers about this. They do have a varying opinion as to whether the person can go out of US on AP or not. But he/she can definitely file for I-485 and that I-485 filing is a valid one.
 
Even though I am not a lawyer, I have done lot of research on defintion of 245i vs 245k. Are you sure about "you cannot apply I-485 when you are out of status. 245(K) covers previous out of status situations not present one"? Actually, I was 245i applicant and got my green card approval. Your friend still can apply for 485 under 245(k) for his wife, but like I said, I am not a lawyer. please have him talk to his lawyer.

Here's the information that I extracted from the website: http://www.bcis.com/amnesty.shtml or see below (in boldfaced items for your friend and his wife).

INA § 245

How Do I Benefit From Section 245(i)?

Background

Our immigration laws allow qualified individuals to enter the United States as Lawful Permanent Residents ("green card" holders). after they obtain immigrant visas from a consulate or embassy outside the United States or, for many immigrants already lawfully in the United States, through a process called Adjustment of Status. If you entered the United States unlawfully, if you entered with permission but did not stay in lawful status, or if you worked without permission, you normally would have to leave the United States in order to apply for an immigrant visa. Special rules under section 245(i) may allow you to apply to adjust status without leaving the United States.

You might need section 245(i) if you:

- Entered the U.S. without being inspected by an BCIS official.

- Stayed in the U.S. longer than allowed by BCIS.

- Entered the U.S. as a worker on an aircraft or ship (crewman).

- Entered the U.S. as a "Transit Without Visa."

- Failed to continuously maintain a lawful status since your entry into the US.

- Worked in the U.S. without BCIS permission.

-Entered as an "S" nonimmigrant (relates to witnesses about criminal or terrorism matters).

- Are seeking a work-related visa and are out of status at the time of filing the application to adjust status (Form I-485).

Worked in the U.S. while being an "unauthorized alien." NOTE: There are some groups that may not need to use section 245(i).

The spouse or unmarried minor child of a U.S. citizen or the parent of a U.S. citizen child at least 21 years of age if he/she was inspected and lawfully admitted to the United States, but subsequently overstayed his/her authorized admission or worked without permission, may apply for adjustment of status under section 245(a) and does not need to use section 245(i). Certain persons who are eligible for certain employment-based immigrant visas and who were inspected and lawfully admitted to the United States, but have not violated their status or worked without permission for more than 180 days, do not have to apply for adjustment of status under section 245(i). They may be able to use section 245(k).

Hope this helps.
 
I would agree with the last poster. My understanding is that 245k is like 245i, you can be out of status at the time of filing, provided you meet the other criteria.
 
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