I-485 for Wife cannot be filed due to Priority Dates Retrogression

[vitamin]

I filed for I-140/I-485 in December'04 in EB3 category after my company approved me to use Pre-Cert labor (in December 1st week) my wife was in India therefore she cannot file now as the priority date on labor is Sep'2002.

If my GC gets approved before she files her I-485 .. what options do I have, can she continue to be on H4 ?

Need Help .. pls. advise

 

[srkarthi]

Hi
Check this out.
I sent a mail to my paralegal about the same issue that you have.

My mail to paralegal
Hi
I am having a questing regarding applying I-485 for my future wife.
Once got married, shall she apply for I-485 (follow in befenicery) immediately or wait untill my priority date(04/02/2005) becomes current (currently USCIS is processing EB3 category cases with PD 04/01/2002 due to retrogation).

Reply from my paralegal
Hi :

Once you get married, your wife should apply for and enter the U.S. on and H-4 visa. When she arrives, we will then file an I-485 application for her as a follow-to-join derivative beneficiary. She does not have to wait to file.

Let me know if you have any further information.

 

[neocor]

I filed for I-140/I-485 in December'04 in EB3 category after my company approved me to use Pre-Cert labor (in December 1st week) my wife was in India therefore she cannot file now as the priority date on labor is Sep'2002.

If my GC gets approved before she files her I-485 .. what options do I have, can she continue to be on H4 ?

Need Help .. pls. advise

It will be highly unlikely that your GC will be approved before your wife could file her 485. Your GC cannot be approved until the priority dates reach Sept 2002 and she cannot file until the same date.
The margin of error is only 2-3 days, or if you delay filing her 485 after the priority date become available.

Ideally you will know almost a month in advance when the priority dates will become current for Sept 2002. The Visa Bulletin for a particular month becomes available almost a month in advance.
Therefore you should keep all the papers ready to file the 485 exactly on the first day that the priority dates become current.

The points for concern are:

1. Your GC gets approved on the first day that the priority dates become available for Sept 2002. I dont know what happens even if her 485 application reached the INS on the same day.

2. The 485 medical can delay the filing of the 485 papers. You can always do the medical well in advance but the medical report will expire in 1 year. I have heard people wait for almost 20-30 days for the medical reports to arrive from the date you go in for the medical.

But if what SKARTHI's lawyer says is ture then offcourse you have no problem. Hope that is true.

neocor

 

[pralay]

If my GC gets approved before she files her I-485 .. what options do I have, can she continue to be on H4 ?

If your I485 gets approved, her H4 will become invalid automatically and she will be out of status (unless she applied for I485 already). However, this kind of out of status less than 180 days is not an issue. If she files within 180 days of your approval, she will be fine. She should not go out of country within that period (between your approval and filing her I485).

But according to my knowledge whatever "srkarthi" mentioned is true. She does not need to wait for filing her I-485.

 

[chimi]

vitamin,
I think if you were able to file before the priority dates retrogressed then your wife (being a dependent) should be able to file too. What are your other details...?? what location......??

I suggest if you have a good lawyer then talk to him/her. They can find loop holes in the system to get your in....

chimi....

I filed for I-140/I-485 in December'04 in EB3 category after my company approved me to use Pre-Cert labor (in December 1st week) my wife was in India therefore she cannot file now as the priority date on labor is Sep'2002.

If my GC gets approved before she files her I-485 .. what options do I have, can she continue to be on H4 ?

Need Help .. pls. advise

 

[TheRealCanadian]

But according to my knowledge whatever "srkarthi" mentioned is true. She does not need to wait for filing her I-485.

If the priority date is not current, then the wife's I-485 is not "approvable when filed". Therefore, it cannot be filed.

 

[Tomark]

Employment Based Petition & Asylum Seeker

Hello Guys:

I am not sure if we are in the right forum here but all of you seem to be very knowledgeable and helpful. We have a few questions and hope that somebody could help me.
My wife is from China and she came to the US in March 1999. She applied for asylum and was approved in April 2001. Her I-485 is still pending but we understand that the approval may still take a long time.

We got married in November 2001.

The Labor Certification process was started by my employer in September 2003, which was approved in February 2004. Our Immigration Attorney said that we should try to get my wife’s I-485 also through my Employment Based petition, since it would certainly be approved much earlier than through her Asylum case.

My RD for I-140 & I-485 is May 2004 and the RD for I-485 for my wife is September 2004. My I-140 was approved in March 2005. I may add that I’m from Germany (I understand that this would play a role in terms of retrogression).

Here are our questions:
1) Would my wife be approved at the same time as me, since she is from China?
2) Would our approval date be based on my Employment Based petition and RD or the (later) RD of my wife’s I-485 petition?
3) Would USCIS take longer for our approvals based on the fact that our case is not ordinary?
4) Would anybody see a problem when my wife is traveling back to China once her I-485 has been approved, since she used to be an asylum-seeker?
5) Any other helpful insights?

Again, thank you so much for any advice regarding our case!

My signature:
TSC / EB3
PD: September 02, 2003
I-131: AD June 29, 2004 / LUD January 18, 2005
I-765: AD August 06, 2004 / LUD January 18, 2005
I-140: RD May 25, 2004 / AD March 16, 2005 / LUD March 17, 2005
I-485: RD May 25, 2004 / LUD March 17, 2005 (LUD because of my FP on 03/16/05?)