Nightmare:Spouse cannot file 485? Please help

A

aaifor

Registered Users (C)
Hi,
I filed my concurrent I-140/I-485 Dec 2004 in EB3 cateogry. So i think i was able to get that before they stopped accepting 485 applications in EB3.

I am planning to go to India to (probably) get engaged/married. My attorney told me that he cannot file a 485 for my spouse until the visa number gets current.

So here is the big DILEMNA>>>>

What if my 485 gets approved before the visa number gets available?

Here is my understanding of the ensuing nightmare...
1) Once 485 gets approved then i am not in H1-B status anymore
2) Since i dont have H-1B status because of 1) my spouse loses her H-4 status
3) Since visa number is not available we cant file for her 485
4) Because of 3) she goes out of legal status
5) I (we) have to leave the country (usa) then....

Is this nightmarish scenario correct???? Then i have to think real HARD if i should be getting married to somone in India?

(FWIW: I have a a friend (India) who is in my position and just got married and brought his spouse here. His company told him they cannot file for his spouse's 485 because of visa number unavailability).

Thanks for your suggestions.
 
Your 485 cannot be approved without a visa number being available, so the scenario you described would not happen...

as soon as you get married, her PD will be same as your so as soon as the PD moved past yours you can file 485 for her.
 
aaifor said:
Hi,
I filed my concurrent I-140/I-485 Dec 2004 in EB3 cateogry. So i think i was able to get that before they stopped accepting 485 applications in EB3.

I am planning to go to India to (probably) get engaged/married. My attorney told me that he cannot file a 485 for my spouse until the visa number gets current.

So here is the big DILEMNA>>>>

What if my 485 gets approved before the visa number gets available?

Here is my understanding of the ensuing nightmare...
1) Once 485 gets approved then i am not in H1-B status anymore
2) Since i dont have H-1B status because of 1) my spouse loses her H-4 status
3) Since visa number is not available we cant file for her 485
4) Because of 3) she goes out of legal status
5) I (we) have to leave the country (usa) then....

Is this nightmarish scenario correct???? Then i have to think real HARD if i should be getting married to somone in India?

(FWIW: I have a a friend (India) who is in my position and just got married and brought his spouse here. His company told him they cannot file for his spouse's 485 because of visa number unavailability).

Thanks for your suggestions.
Click to expand...


Whatever scenario you described regarding visa number availability can happen, but the window of that situation is so small that you almost can stop worring about it. Keep in mind that, your PD is your wife's PD too. So when your visa number will be available, it will be available for your wife too (provided your wife is in USA on H4 already). For example, if your PD becomes current, for example, on 1st August, that means the earliest date you can be approved is 1st August. Meanwhile, your wife will be eligible for filing her I-485 on very same date too - on 1st August. There is very little chance that you will be approved very same day when your PD becomes current.
Even if due to some reason she is not able to file her I-485 on the day when her PD becomes current, but your I-485 gets approved, 245(k) can cover her out of status (from the date of your I-485 approval to her I-485 receipt date). If she is already in USA on H4, she does not need to leave USA.

I think you should be more worried about your marriage date (and getting married before your PD becomes current and getting her in USA on H4) than visa availability for her.
 
Only problem you have: you can never work on EAD till you PD is current, otherwise your spouse (on H4) will be out of status.
 
Pd

Thank you all.

What is the current PD for EB3?

FWIW my labor was filed Sep 2004. Is that my PD?
 
aaifor said:
Thank you all.

What is the current PD for EB3?

FWIW my labor was filed Sep 2004. Is that my PD?
Click to expand...
Yes, your PD is Sep 2004. The current PD for EB3 I/C/P is June 1st 2002.
 
aaifor said:
Thank you all.

What is the current PD for EB3?

FWIW my labor was filed Sep 2004. Is that my PD?
Click to expand...
Your PD is Sep 2004 .... since the current PD cutoff is more than 2 years behind, you have a lot of time (18 months on average - maybe even much more !) before your PD would become current (pending any interim legislation, of course).

So the scenario you describe won't probably happen -- so get married and get her here on H4 as others have said.
 
You must log in or register to reply here.
Top