Need advice, 485 change

Y

yixin

New Member
I recently learned about this wonderful web site from a friend and would appreciate some advice on my case.

My 485 has RD of 08/2001 and ND of 09/2001. I got married last month. The immigration specialist of the company I work for said that I can add my husband to my 485 application. We already started preparing the documents, then the new project I just joined had a budget cut. Some senior people were let go. Considering I am the new and inexperienced member of the project and the uncertain outlook of the project, my husband and I are hesitant of adding him to my application. We are concerned that it may cause delay due to RFE or interview and if I am laid off before 485 approval, we may both get denied. Our immigration specialist said that I can't lose where I am in the process, even if I am to be laid off. She said that INS won't deny my case because of unemployment, but will expect me to seek employment similar to my current position. She said that if we file my husband as my spouse, he will be applying under my employer-based sponsorship. As such, there is no interview for either me or my husband.

Since there are a lot of knowledgeable members on this site, I would really appreciate some advice.
 
What advantage do you gain by leaving your husband out of the application? Also remember that once you are alone approved (ie: assuming that you do not include your husband in the application) then your husband will probably have to apply under the family category which takes much more time. Confirm this and anything said on these forums with a competent attorney. Hope this helps.
 
some clarifications

> Our immigration specialist said that I can't lose where I am in the process, even if I am to be laid off. She said that INS won't deny my case because of unemployment, but will expect me to seek employment similar to my current position.

that's not exactly accurate... an unemployed person can only be approved IF the INS does not issue an employment RFE after they become unemployed, i.e., the applicant "slips through" unnoticed. these days, more often than not, employment RFEs are issued. at that point, you must meet one of the following criteria:

1. you are employed full-time with the original sponsoring employer and in the position that was labor-certified,

2. you are employed in a similar position with another employer *and* your I-485 application has remained unadjudicated for more than 180 days (AC-21 portability),

3. or, if you are unemployed, you have a firm and documented permanent job offer, where the employer states that they will employ you full time as soon as your GC is approved. keep in mind that it *cannot* be a frivolous job offer, and both the employer and employee must honor it. otherwise both parties will be in legal hot soup for immigration fraud at the time of citizenship or GC renewal. in any case, this is the weakest of the three scenarios.

i guess in your case, you have to balance two mutually-exclusive considerations:

- it seems from the posts in these forums that including a spouse late in the I-485 process almost always results in an interview. if you are quite sure you will not be unemployed then you are in a comfortable situation.

- sponsoring a spouse after GC approval is a long process until approval, which especially hits hard those applicants whose spouses are not currently in the U.S., and they have been known to wait for four years or more before they can join. if your husband is already in the U.S., then at least you won't have to endure any separation.

mind you, i am not recommending one course of action over another at all. i am laying out a couple of scenarios that you MUST discuss with your immigration attorney before you decide anything.
 
thanks for the advice

Thanks a lot for the detailed advice! Now I feel less ignorant when talking to the attorney. I have two further questions:

If we choose the option of adding my husband to the application and then if I lose my job and we are both denied due to my unemployment, will my husband have trouble in getting visa to come to US for business trips in the future?

If we choose the option of sponsoring my husband after my 485 approval (if that day can come while I still have the job), can my husband still travel out of US while waiting for 485 approval?
 
answers

> If we choose the option of adding my husband to the application and then if I lose my job and we are both denied due to my unemployment, will my husband have trouble in getting visa to come to US for business trips in the future?

that pretty much depends on what your current status is now: if you have not switched from H1B to EAD, then your non-immigrant status is preserved. in case of a denial, you simply continue on your H1B until the end of its term. you haven't mentioned what your husband's status is, or even if he is in the U.S. currently. if he he is on a visitor's visa (B1/B2), he could certainly face some problems when he travels on that. he would not have that problem if he was on H-4 status. so in case of denial, apply for a change of his status to H-4. the reason for this is, H-1/H-4 are recognized by the INS as "dual intent" visas, i.e. while they are non-immigrant visas, the intention to immigrate while on that status is recognized. B-1/B-2 are purely non-immigrant visas; as such, applying for a green card is clear and documented evidence of intention to immigrate.

> If we choose the option of sponsoring my husband after my 485 approval (if that day can come while I still have the job), can my husband still travel out of US while waiting for 485 approval?

yes, he can. provided he already is in the U.S. when you start his sponsorship process, you can apply for an "Advance Parole" (AP) for him, which will allow him to travel back to the U.S. from abroad. AP is usually issued for multiple entries with a one-year validity, and is renewable indefinitely until the adjustment of status is adjudicated.

One note of caution: in scenario 1 above, and assuming his current status is B-1/B-2, if you have obtained an AP for your husband, and he travels back to the U.S. on that basis, he will be admitted into the U.S. as a "parolee" and will lose his non-immigrant status. in case of a denial, he will not have a non-immigrant status to fall back on. i believe you could still apply for an adjustment of status for your husband to H-4, but lawyers differ on this. some say it can be done. so for scenario 1, the best visa type for your husband would be H-4. in case he is not on that status already, i don't know if your lawyer would advise a change of status to H-4 this far into your I-485 process.

CAVEAT: please keep in mind that i am not a an immigration lawyer/expert. the above just to pass on to you what i have learned. please *do* consult with your attorney before making up your mind.
 
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many thanks and further questions

Pork Chop, Many thanks again for the clarifications and generously sharing your knowledge.

The thing with the company I work for is that we can't contact the attorneys ourselves, but through our immigration specialists. Our immigration specialist made a quest to the attorney responsible for my case and I am still waiting for the attorney's response.

Sorry for missing some background information. I am working on EAD since my H1B expired and my husband is in US on F1 as a graduate student.

My husband and I have decided that if I lose my job and my case gets denied as a result, we will leave US and move back to China to settle down. So if my husband applies with me and we both get denied, will my husband have trouble getting B1/B2 visa to come to US for business reasons after we move back to China (because of the bad history of intension to immigrate, but failed)?

How much delay in 485 approval does it usually cause by an interview? If I find a new job in a state that’s not with the NSC, does my case need to transfer processing center?

Is that once I get the 485 approval, I will be free even if I get laid off or leave the company? Or can the company or INS revoke the GC or are there any tricky things I should be aware of (I don't care about US citizenship)? I remember being told that every time a foreign employee of our company leaves or is let go, our company always informs INS.

Also if I sponsor my husband after my 485 approval, how long will it take roughly? Are there any tricky things I should be cautious about with this option?
 
you are most welcome, yixin. i am glad you have found these forums to be informative and helpful. i am compelled to add that these forums offer information that is generalized, and/or deriving from personal experiences. for more specific information or help, the best (or even only) source is a qualified immigration attorney.

having said that, i cannot - and even should not - attempt to offer you very specific advice. it is a pity that your company policy does not allow you direct contact with the attorney, but it should still not stop you from contacting one directly on your own, outside the company. i think you will find it worth your while even if some consultation fees are involved; after all, these are quite important issues that you are dealing with, which will bear on your future.

i will offer some more insights, though. on the issue of your husband's future ability to visit the united states, the thing to remember is that a "bad history of intention to immigrate" does not constitute a basis of flat-out or perpetual denial of any future immigration benefits (including business visas) as long as there have been no intentional violations of immigration laws. in case of a business visa application, your husband will certainly face increased scrutiny and questioning by consular officers; but in case of a genuine business visit, documentation from his company, and that from the u.s. counterpart will certainly weigh in in his favor. the circumstance of the previous immigration denial can be explained at that point.

on the more immediate issue of how best to go about getting your husband on track with his immigration process, an immigration attorney would be your best guide. one attorney you can try is Jim Mills. he has been a very regular contributer to these forums, and has helped many people with his advice, and many users have become his clients as well. here is his contact, which he generously posts in these forums:

James D. Mills, Esq.
Attorney at Law
PH: 732-644-5702
jdmills@justice.com
http://www.geocities.com/jamesdmillsesq/

if you refer to ImmigrationPortal.com in your email to him, i am sure you will find him helpful.

i guess i have not been very helpful this time around, but i'd rather you did not take any chances. go to the proper expert!

best of luck!
 
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