Pending AOS and marriage

S

sampathks

New Member
Hi All,
Please help me with information.

I have a pending AOS (I-485) application filed through my employer. I'm awaiting approval since my priority date (Sep 2004) is already current for the last few months now. I'm currently working on H1-B visa.

I'm planning to marry a H1-B visa holder who is currently working here in US.

What are my choices regarding getting my future spouse also the GC?

Thank you all for your help.
- SKS
 
HURRY UP and get married!!! You need to be married before your green card is approved in order for your spouse to qualify for a derivative green card, which would normally be granted at the same time or shortly after your own. But if your green card is approved first and then you get married, it would be a 4-5 year wait for your spouse to become eligible for a green card through you. And during that waiting period, your spouse gains no legal status.

How long ago was your I-485 filed? If it's been more than 2 years, you should prepare to file WOM given that you've been current for months and they still haven't approved your case. But do that only after you get married, as you don't want the green card to be approved before your marriage, for the reasons I explained above.
 
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Jackolantern said:
HURRY UP and get married!!! You need to be married before your green card is approved in order for your spouse to qualify for a derivative green card, which would normally be granted at the same time or shortly after your own. But if your green card is approved first and then you get married, it would be a 4-5 year wait for your spouse to become eligible for a green card through you. And during that waiting period, your spouse gains no legal status.

How long ago was your I-485 filed? If it's been more than 2 years, you should prepare to file WOM given that you've been current for months and they still haven't approved your case. But do that only after you get married, as you don't want the green card to be approved before your marriage, for the reasons I explained above.
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Jackolantern, thanks for your reply.

My I-485 was filed Aug 2007. My PD (Sep 2004 EB-2) has been current since Sep 2009 visa bulletin.

Do you mean that even if the spouse is in US on H1-B, she cannot derive benefits out of my GC application if we get married after my approval?

Also, do you know if it is possible to withdraw AOS application at this point in time? (i.e after PD has become current...)
 
sampathks said:
Do you mean that even if the spouse is in US on H1-B, she cannot derive benefits out of my GC application if we get married after my approval?
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That's right. Marry after GC approval, and you will need to file I-130 and wait 4-5 years. Marry before GC approval and add her to the application, and she gets her green card at the same time or maybe a few days or weeks after you.
Also, do you know if it is possible to withdraw AOS application at this point in time? (i.e after PD has become current...)
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If it's not approved yet, you can still withdraw it, provided they receive and process your withdrawal request before they approve the GC. I figure you want to withdraw it so it can be refiled after you get married? That could be dangerous, as it could result in your I-140 also getting cancelled, which would make refiling a problem.

Instead of outright withdrawing it, you should file I-824 to switch to consular processing. That way it preserves the I-140, and you know they're not going to suddenly approve the GC behind your back, because you have to show up for the interview before approval can take place. So once you get the interview notice you can schedule a quick marriage if necessary.

But why bother with all of that complication? If you know you're going to get married anyway, get married in a court soon, and then have an I-485 filed for your new spouse. Then later on you can have an elaborate ceremony with your and her family.
 
If it's not approved yet, you can still withdraw it, provided they receive and process your withdrawal request before they approve the GC. I figure you want to withdraw it so it can be refiled after you get married? That could be dangerous, as it could result in your I-140 also getting cancelled, which would make refiling a problem.
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Yes, you are right...with the intention of refiling after getting married. My I-140 was approved independent of I-485 (i.e. I did not do concurrent filing of both I-140 & I-485). In that case, will it still imply I-140 gets cancelled too?

Instead of outright withdrawing it, you should file I-824 to switch to consular processing. That way it preserves the I-140, and you know they're not going to suddenly approve the GC behind your back, because you have to show up for the interview before approval can take place. So once you get the interview notice you can schedule a quick marriage if necessary
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That seems to be a very good thought. How long does it take for consular processing interview to be scheduled? And do they allow rescheduling?

Sorry for the weird questions. I am in a fix and just figuring out various options to consider before I can proceed. Thanks for your reply
 
sampathks said:
Yes, you are right...with the intention of refiling after getting married. My I-140 was approved independent of I-485 (i.e. I did not do concurrent filing of both I-140 & I-485). In that case, will it still imply I-140 gets cancelled too?
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I don't know if and how you could cancel the I-485 while preserving the I-140, other than by switching to consular processing. Maybe it can be done, but I'm not sure how to do it or how safe it is.
That seems to be a very good thought. How long does it take for consular processing interview to be scheduled?
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A few months.
And do they allow rescheduling?
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Sort of. There are fees to pay and papers to file in order to get an interview scheduled in the first place, and you'll have some breathing room in delaying the payment and paperwork.

You should be aware that if you switch to consular processing, you lose AC21 protection, so if you get laid off your GC prospects are dead. Similarly, if you withdraw and refile, and lose your job within 180 days, AC21 would not protect you if the employer revokes the I-140 within that 180-day window.

Keep it simple, and hurry up get married so your new spouse can file I-485. Even if the GC is approved right after you get married but before her I-485 is filed, she can still file the I-485 given that the marriage occurred before GC approval.
 
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