Marriage I-485 Pending

D

delhiusa

New Member
I am an Indian national on an H1B visa (valid till mid-2021) and I-485 was filed in October 2020 with EB2 to EB3 downgrade. I am looking to get clarity on the possible situation resulting from marriage.

I am a single person and the AOS application currently filed is for self only. However, if I marry a foreign national i.e. non-US citizen, what immigration filing steps will be needed for the spouse to join in USA in the following possible scenarios.
  • Marriage occurs after approval of EAD/Advance Parole but before adjudication of I-485.
  • Marriage occurs after adjudication of I-485.

The foreign national may or may not have a US visa (visitor/student/H1).
 
1. If they manage to come to the US somehow (including possibly on H4 visa based on your H1b status (if you are still maintaining H1b status) before your I-485 is approved, or on their separate H1b visa), they can do AOS (I-485) in the US as your derivative beneficiary, either while your I-485 is pending or after it is approved. If they cannot come to the US, then you would have to file I-824 so that after your I-485 is approved, your petition goes to NVC and the consulate to start Consular Processing for your spouse as your derivative beneficiary; this means they will not be able to come until a while after you get your green card.
2. After the marriage, you would have to file an I-130 petition for your spouse to immigrate through family-based immigration as the spouse of a permanent resident. If they are in the US and in status, they can file I-485 together with the I-130. If not, they will do Consular Processing abroad.
 
If the possible visa is a strictly non immigrant visa (visitor, student) the visa holder may not enter the US with the intent to adjust status.
 
Effective 01/01/2021 USCIS/DOS is no more allowing to file I-485's based on date of filing. It has to be based on Final Action Date. I believe this might help you in your understanding to file I-485 for your spouse should the need be. This is in regards with employment based I-485 filing.
 
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