I-485 pending and divorce

[iduniqueone]

Hi,

I have an I-485 adjustment of status pending which was filed through my husband's employment. Wife's name was also included in -485 filing but we are going through divorce.

If I get divorced how many days grace period do I have to leave the country ?
After the divorce do I need an advanced parole to leave USA and come back in H-1 in October ?
If I am on valid I-485 adjustment of status in USA and I get the H-1 approved in October, can I stay in that H-1 without going to India for stamping ?
What will happen to my I-94 in this case ? (My H-4 expired in 2003 )

 

[calmese]

My coworker is in the same boat with your husband. He and his wife separated a while ago. But they didn't file divorce until his employment based I485 got approved.

To answer some of yr questions:


After the divorce do I need an advanced parole to leave USA and come back in H-1 in October ?
--->You don't need anything to leave the country. After divorce, i suppose you can't use his pending employment based I485 Advaned parole to enter the US. If you have valid H1 visa stamp on your passport, that will do.

If I am on valid I-485 adjustment of status in USA and I get the H-1 approved in October, can I stay in that H-1 without going to India for stamping ?
---> Yes, you can stay without going to India for stamping. The only time you need the stamp is when you leave US and re-enter, you'll need H1 stamp.

 

[pralay]

If I get divorced how many days grace period do I have to leave the country ?

You can stay in USA until the final decision is made on your I-485 (as long as your I-485 is pending).

After the divorce do I need an advanced parole to leave USA and come back in H-1 in October ?

Advance parole is for re-entry and it has nothing to do at the time of exit. Yes, you can come back on H1 if that is valid at that time.

If I am on valid I-485 adjustment of status in USA and I get the H-1 approved in October, can I stay in that H-1 without going to India for stamping.

I guess so, but not sure.

 

[iduniqueone]

I-485 penidng & Divorce

Hi Pralay,
Thanks for the prompt reply. After divorce my I-485 pending ( being a dependent) will not be valid, right ? So after divorce within how many days do I have to leave USA ?
thanks

 

[pralay]

Hi Pralay,
Thanks for the prompt reply. After divorce my I-485 pending ( being a dependent) will not be valid, right ? So after divorce within how many days do I have to leave USA ?
thanks

Your I-485 is valid as long it's pending (not denied). Divorce does not invalidate dependent's pending I-485 automatically (unlike H4 or L2 visas). After divorce as long as your I-485 is valid, you can stay in USA on the basis that your I-485 is pending.

 

[TheRealCanadian]

Thanks for the prompt reply. After divorce my I-485 pending ( being a dependent) will not be valid, right ? So after divorce within how many days do I have to leave USA ?

A dependent I-485 is different from a dependent non-immigrant status in that it does not automatically expire when its underlying basis ceases to exist. Therefore, you should be free to stay until it is denied.

 

[imwatcher123]

The derivative I-485 based on employment should be different from I-485 through marriage (to a Citizen). Becuase of CIS processing delays, I-485 applicants have to wait for over 2 years before their I-485s can be adjucated. For those I-485 derivative applicants who are facing divorce and whose I-485s have been filed for a long time, say, more than 6 months or a year, does CIS offer some relief based on the fact that they did have a bona fide marriage at the time of filing (like the issue of age-out), even though they are divorced at the time of I-485 adjucation?

 

[pralay]

The derivative I-485 based on employment should be different from I-485 through marriage (to a Citizen). Becuase of CIS processing delays, I-485 applicants have to wait for over 2 years before their I-485s can be adjucated. For those I-485 derivative applicants who are facing divorce and whose I-485s have been filed for a long time, say, more than 6 months or a year, does CIS offer some relief based on the fact that they did have a bona fide marriage at the time of filing (like the issue of age-out), even though they are divorced at the time of I-485 adjucation?

The marriage has to exist at the time of granting green card. If divorce happens before USCIS grants PR status (i.e I-485 approval), I don't think there is any relief for the beneficiary.
Keep in mind that, for I485 thru marriage (to a citizen) the dependent gets conditional green card, if marriage is less than two years old at the time of I-485 approval. Condition can be removed only after two years from I-485 approval date. If divorce happens within two years after I-485 approval date, conditional green card gets revoked. There are some waivers - for example if the marriage happens in good faith, the dependent can appeal to court and keep green card (not to mention he/she has to go thru all the hassles to prove that the marriage was not sham). However, this waiver does not cover about the status before I-485 approval. I don't any other law that covers pre-approval period.

 

[iduniqueone]

H1-b

Hi,

If i apply for H-1 by April 15th in normal processing & get it approved by October 15th or later, should i come to USa and have some job within certain period of time ( say 2 or 3 months) ?
Or can i come anytime within an year after the H-1 is approved ?
Is it the day I land in USA on H-1 is taken into account for being on valid H1B or the day it is approved ?
Hoping to hear some help. Thanks

 

[imwatcher123]

The marriage has to exist at the time of granting green card. If divorce happens before USCIS grants PR status (i.e I-485 approval), I don't think there is any relief for the beneficiary.
Keep in mind that, for I485 thru marriage (to a citizen) the dependent gets conditional green card, if marriage is less than two years old at the time of I-485 approval. Condition can be removed only after two years from I-485 approval date. If divorce happens within two years after I-485 approval date, conditional green card gets revoked. There are some waivers - for example if the marriage happens in good faith, the dependent can appeal to court and keep green card (not to mention he/she has to go thru all the hassles to prove that the marriage was not sham). However, this waiver does not cover about the status before I-485 approval. I don't any other law that covers pre-approval period.

What I was trying to say is that CIS processing delays are totally unfair to I-485 applicants. Should there be no delays, many would have got their green cards before problems in their lives such as divorce arise. CIS should offer some relif to applicants affected by its incomptence.

 

[pralay]

What I was trying to say is that CIS processing delays are totally unfair to I-485 applicants. Should there be no delays, many would have got their green cards before problems in their lives such as divorce arise. CIS should offer some relif to applicants affected by its incomptence.

When a person gets married to a citizen it's always smarter decision to go for consular processing route because that's lot faster. Unlike employment based category, CP process thru marriage is safe. Employment based applicants opt for I-485 because there are risks involved in CP process (loosing job, out of status issue etc). I am an employment based PR. Given the choice between I485 and CP provided they are equally safe (or equally risky), I would not go for I485.

The unfairness you are talking about exists in all form of immigration process - including employment I485. I have seen many people in Sillicon Valley who had good stable jobs in big companies, but then got laid off in I485 stage. Then never got any offer in next months (or even year). Eventually some of them had to leave USA abandoning their GC process.

 

[pralay]

Hi,

If i apply for H-1 by April 15th in normal processing & get it approved by October 15th or later, should i come to USa and have some job within certain period of time ( say 2 or 3 months) ?
Or can i come anytime within an year after the H-1 is approved ?
Is it the day I land in USA on H-1 is taken into account for being on valid H1B or the day it is approved ?
Hoping to hear some help. Thanks

After H1 stamping on passport, you can come anytime as long as your H1 is valid and your H1 employer agrees with you regarding joining date.

Your H1 status starts from the day when you land in USA.

 

[MJ23]

Help - Divorce and Remarriage during I-485 Pending

Folks,

here is my scenario - Please give me your input on this

Me and my ex-wife filed for I-140/I-485 in Oct 2003 (i'm the principal applicant through my employer and she filed as dependent)

We got divorced in June 2004.

We got an RFE on her I-485 application asking to verify marriage status etc - around the same time( purely coincidental - as a lot of my colleagues with solid marriages got the same RFE as well)

Since she works on a H1B herself, she decided to withdraw her dependent I-485 petition as a response to the RFE. She sent back a request for withdrawal letter to INS and they received her letter by January 2005. As of today, her case status shows as "We received your response to our request for information on Jan xx, 2005. It is taking etc etc days ".

My I-140 got approved lately, but my I-485 is still pending.

I'm thinking of remarrying in the next 3 months and bring my spouse to the US on H-4 visa(assuming i do not get GC before that). My question to you all is - once my spouse is here on H-4 visa, can i immediatly add her as a dependent to my pending I-485 application? - or do i need to wait for my ex-wife's application to be adjudicated?

in other words, is it enough that my ex-wife has filed for withdrawal - therefore i can add my spouse as a dependent to my GC ?

Please clarify with your opinions. I would really appreciate your input.

THANKS

 

[pralay]

I'm thinking of remarrying in the next 3 months and bring my spouse to the US on H-4 visa(assuming i do not get GC before that). My question to you all is - once my spouse is here on H-4 visa, can i immediatly add her as a dependent to my pending I-485 application? - or do i need to wait for my ex-wife's application to be adjudicated?

in other words, is it enough that my ex-wife has filed for withdrawal - therefore i can add my spouse as a dependent to my GC ?

Please clarify with your opinions. I would really appreciate your input.

THANKS

You don't need to wait for anything (neither for your ex-wife's withdrwal nor for the completion of your ex-wife's I485 adjucation) . Since you have legal document for divorce and new marriage certificate (with new wife) you can apply for her I485 immediately, provided she can enter with her H4.
Probably, your ex-wife's I485 will be pending in zombie state for years. At least historically (from my limited observation) that's the way USCIS behaved in past for divorce/separation cases. They don't deny I485 immediately or cancel I-485 immediately upon withdrwal request.
So it's better to move ahead with your new wife's I485, and not wait for the conclusion of your ex-wife's case.

 

[MJ23]

Thanks

Thanks for the info Pralay.

 

[iduniqueone]

I-485 pending & interview

Hi,

I have an I-485 adjustment of status pending which was filed through my husband's employment. Wife's name was also included in I-485 filing but we are going through divorce.

I have notified USCIS of my latest address change. The case has been transferred to Chicago regional office to set up interview. But they have not yet notified about the interview details. Since I have filed as a dependent,
Will I get a notification from the USCIS directly to my recent address ? Or would my husband or his immigration attorney will only get notified and not to me directly ? Thanks and I appreciate any answer on this.

 

[pralay]

Since I have filed as a dependent,
Will I get a notification from the USCIS directly to my recent address ? Or would my husband or his immigration attorney will only get notified and not to me directly ? Thanks and I appreciate any answer on this.

Whether its RFE or interview notice, your attorney should get a notice anyway. For RFE you won't get any notice, but for interview you should get one at your new address (not your husband's). However, USCIS is notorious about address mess up. Sending notice to your old address, that's a big possibility. So I would recommand you to keep in touch with your attorney regarding this issue.

 

[iduniqueone]

Whether its RFE or interview notice, your attorney should get a notice anyway. For RFE you won't get any notice, but for interview you should get one at your new address (not your husband's). However, USCIS is notorious about address mess up. Sending notice to your old address, that's a big possibility. So I would recommand you to keep in touch with your attorney regarding this issue.

Hi,

Any attorney or mediators pls reply! I need help.

I have an I-485 adjustment of status pending which was filed through my husband's employment. Wife's name was also included in I -485 filing but we are going through divorce. The divorce decree has not yet been issued since we still stay married but are in the divorce process. I hope that the primary beneficiary, my husband has nto informed about this separation to INS.

The application was transferred to chicago regional office from VT. But recently the dependent on primary applicant made change of address with atlanta. Now the wife & husband got a notice for interview for the GC in May last week. Even if the dependent makes a change of address, would both the applications have the change of address come in to effect ?

Also they have asked to bring current employment proff, pay stubs, W2 forms, any common shared living evidences like ( utiltiy/ lease/Tax filing/bank a/c). Do you know what quetions they might ask in the interview ? Will they aks for any evidences or photos of living together since the last 2 years or so ?

Pls reply and hoping to get soem help.

Thanks,
iduniqueone

 

[pralay]

Even if the dependent makes a change of address, would both the applications have the change of address come in to effect ?

No, one change of address does not affect other - even if that is dependent's.

Also they have asked to bring current employment proff, pay stubs, W2 forms, any common shared living evidences like ( utiltiy/ lease/Tax filing/bank a/c). Do you know what quetions they might ask in the interview ? Will they aks for any evidences or photos of living together since the last 2 years or so ?

If USCIS comes to realize separation happened already before I-485 approval, it can deny dependent's I-485 even though the formal divorce did not occur yet. In general if they cannot or don't want to take decision, they keep I-485 pending for awhile and eventually deny it (based on formal divorce decree). As they asked for "common shared living evidences", it's very likely that they are going to enquire about current status of marriage. I guess it would be fruitless to speculate too much what USCIS interviewer is going ask. It's more of an issue between you and your husband. If you are unable to work out with your separated husband for how to provide "shared living evidences" (e.g. shared rental agreement, sharing utility bills, joint tax filing, joint bank account), then your I-485 is definitely in danger.

 

[iduniqueone]

No, one change of address does not affect other - even if that is dependent's.


If USCIS comes to realize separation happened already before I-485 approval, it can deny dependent's I-485 even though the formal divorce did not occur yet. In general if they cannot or don't want to take decision, they keep I-485 pending for awhile and eventually deny it (based on formal divorce decree). As they asked for "common shared living evidences", it's very likely that they are going to enquire about current status of marriage. I guess it would be fruitless to speculate too much what USCIS interviewer is going ask. It's more of an issue between you and your husband. If you are unable to work out with your separated husband for how to provide "shared living evidences" (e.g. shared rental agreement, sharing utility bills, joint tax filing, joint bank account), then your I-485 is definitely in danger.

Hi,

If the address change of dependent does not affect the address changeof primary applicant, then how or why did homeland security send his interview notice to my new address ? Do they usually send both the applicant's eac others notice ? That is what confusing to me.

I do not know whether he would show up for the interview. Anyway, I intend to notify him about this interview and try to do my best. Leaving the fact, that we are separated, in usual situation what might they ask in the interview ? Any help is appreciated. thanks.