Marriage with pending 485

A

aghalam

Registered Users (C)
Hi Guys,

I filed for my 485 on january 2006 and I am still waitng for it. Meanwhile I want go back home and get married. I would like to know if I can apply 485 for her immediately and I like to know if I can reinstate my H1B and get her to the states with H4.

Thanks
 
Hi RealCanadian,

thank you very much for your reply, He is my friend and his situuation is that:

He is on H1B, but he want to get back to his country to get married, the main question is Can she applu for 485 while she is back in her home country or does she need to get H4 and come to the states and then apply for 485. (Basically can she apply for 485 immediately, before he accidentally get his GC)

The other question is about when he come back to the states as he needs to come back using his AP, we though he will be on Parole instead of H1B and his wife can not apply for H4 unless he reinstate his H1B,

(Note that because of his origin country he can not get back to US using H1, security clearance and timing)

Please help, we are very confused

Many thanks,

Troy
 
TroySJ said:
Can she applu for 485 while she is back in her home country or does she need to get H4 and come to the states and then apply for 485.
Click to expand...

In order to apply for Adjustment of Status, she needs to be physically present in the US in a valid non-immigrant status. So no. What's important is that they get married before his I-485 is approved.

The other question is about when he come back to the states as he needs to come back using his AP, we though he will be on Parole instead of H1B and his wife can not apply for H4 unless he reinstate his H1B
Click to expand...

That part gets iffy because the POE might not let her in as an H-4 alien, since he will not be an H-1 alien. Probably the safest course of action would be to leave, get married and return alone using AP. Immediately file an I-539 requesting a change of status back to H-1 citing the Cronin Memorandum, and once it is approved with the new I-94 send a copy of that back home so his wife can get the H-4. Or they can take their chances with her getting an H4.
 
hi Real Canadian,

thanks a lot for the infi,

Let me make sure about one thing, what you mean is that if they get married before his I485 is approved and then she come here on H1B (Assuming a couple of months later) she can still file for GC even if at that point of time his AOS is approved?

Many thanks,

Troy
 
TroySJ said:
Let me make sure about one thing, what you mean is that if they get married before his I485 is approved and then she come here on H1B (Assuming a couple of months later) she can still file for GC even if at that point of time his AOS is approved?

Many thanks,

Troy
Click to expand...

Troy,
She can come on H1B if Principal's I485 has been approved by then.

She can file for 485 when the PD is current (this is iffy for countries like India where it retrogresses - so one day PD is current: he gets GC, by the time they file 485 for wife it might have been retrogressed so she cant file)

She can file anytime AFTER (or before) the principal's GC approval GIVEN PD is current.

What happens in her case though is that the moment the GC of hubby gets approved, he loses H1 status and automatically her H4 status is cancelled (Even though passport may have valid stamps).

So she is technically out of status from that moment
However 245(k) allows for forgiveness upto 180 days, so if after hubby's GC approval, PD is current and wife files for GC, she is fine.

After over 6 months of out of status stay (bad luck if PD is not current) there is bar to re-entry for 3 years. 1 year out of status stay has bar to entry for 10 years.


So when PD gets current get every document ready for the wife to file when hubby gets GC

Else get her on H-4 and get her an H-1 so she can get independent status and does not accrue out of status stay once husband's GC gets approved, PD rolls back and exceeds 6 months before PD becomes current.
 
Last edited by a moderator:
aaifor said:
After over 6 months of out of status stay (bad luck if PD is not current) there is bar to re-entry for 3 years. 1 year out of status stay has bar to entry for 10 years.
Click to expand...

That's not correct. She only triggers the 3/10 year bars if she's illegally present, not merely out of status. USCIS would need to notify her in writing that she is out of status or she'd need to overstay an I-94 in order to start the illegal presence clock ticking.
 
You must log in or register to reply here.
Top