see this article from immigration-law.com
A large number of 485 waiters are singles or unmarried at the time they file 485 applications. If they maintain their valid H-1B status, they will be able to marry in home country and bring their newly acquired spouses to the U.S. in H-4 status "if the spouse enters the U.S. before the 485 waiter gets 485 approval.
"Approval" means approval of 485 application by adjudicators in the Service Centers and neither receipt of notice nor stamping in the passport nor getting plastic card.
Lately, we face 485 filers who marry and bring their spouses to the U.S. in H-4 status close to the time of approval of their I-485. Legally, by the time the principal alien\'s status is converted to a lawful permanent resident, the spouse\'s H-4 status should also terminate since H-4 is a visa status dependent on a valid H-1B visa status.
Therefore, there arises a question as to what happens if the spouse\'s I-485 application as an "accompanying" spouse is belatedly receipted by the INS after the principal alien\'s 485 application is approved.
Strictly speaking, by that time the H-4 spouse is no longer in H-4 status and there is a serious question of the spouse\'s eligibibility for 485 application, since only an alien in status can submit 485 application.
Two consequences can arise.
First, if the principal alien started the green card process (priority date) before April 30, 2001 and was present in the U.S. on December 21, 2000, the spouses may still be able to file I-485 as a following-to-join beneficiary and using 245(i) benefit.
The principal alien\'s grandfathered 245(i) benefit is also transferred to the spouse without requirement of presence in the U.S. on December 21, 2000 under the LIFE Act that reinstated 245(i) benefit until April 30, 2001.
Second, the spouse may also apply for immigrant visa at the American Consulate at the home country as a following-to-join beneficiary. However, in the second option, the unlawful presence of the spouse may continue to run and if the spouse departs from the U.S. after 180 days to have the immigration interview, he/she may be subject to the three-year bar and the consulate will not be able to issue immigrant visas. Additionally, the INS may be able to initiate removal proceeding if he/she is arrested.
Filing delay of 485 is usually caused by medical examination and collection of such evidence as birth certificate or marriage certificate from his/her home country. In emergency, people may consult their legal counsel as to whether it is desirable to file the signed I-485 application with a proper filing fees without sufficient supporting documentation to get their cases in the system ("filed"
before their status runs out. The INS will then issue RFE to request the required supporting documentation.
One other major problem people from India, Mexico and Philippines face is the priority date. As the number of green cards issued to spouses of permanent residents is limited, quotas are enforced for people from these countries. Consequently, an Indian spouse might have to wait for nearly 3-4 years before an immigrant visa becomes available to him/her.
So, he/she is either forced to be separate from the spouse for these years or must stay in USA illegally, facing a potential rejection and deportation.
