Please help - Relinquishing green card and reverting back to H1 status

[ksam74]

Gurus,

I got my I485 approved last week. My attorney took a long time to file my wife's petition and he only mailed it on Friday. Now, if the visa numbers become unavailable for July, her application will be rejected. I'm preparing myself for the worst case scenario here. We got married after I filed for my I485. I've been maintaining my H1 status and she is on H4. She is tentatively out of status now that my I485 has been approved.

1) How late can I file my wife's petition as my derivative? I read that section 245(K) allows her to file her application within 180 days of my approval. What happens after that? If the visa numbers wont become current for my PD say for an year, can she change status to F1 and file the petition after an year when the visa numbers become current again?

2) Can I relinquish my green card and revert back to H1 status. My H1 is valid till 09/2009. How soon can I refile after relinquishing the gc? I have an approved I140 in EB2 from my current employer that I haven't used. I thought of interfiling, but got my 485 approved in EB3 when dates took a big leap in June. Now, Can I file I485 for me and my wife based on this EB2 I140? Is this a complicated process?

Gurus, please advise. I need all the help I can to figure out a way out of this.

Thank you.

 

[TheRealCanadian]

How late can I file my wife's petition as my derivative? I read that section 245(K) allows her to file her application within 180 days of my approval.

That's correct.

What happens after that? If the visa numbers wont become current for my PD say for an year, can she change status to F1 and file the petition after an year when the visa numbers become current again?

Potentially, but the problem she has is that a) she's out of status and therefore probably unable to change status within the US; and b) married to a Permanent Resident and therefore unable to get a consular visa.

What is your PD? I'd be looking to see if it becomes current on October 1st, at the start of the new fiscal year.

Can I file I485 for me and my wife based on this EB2 I140? Is this a complicated process?

In the worst case, I'd focus more on FTJ for your wife, than restarting your GC from scratch.

 

[ksam74]

Real Canadian,

Thank you for the response. My priority date is Mar 2003. So, changing status from H4 to F1 is going to be difficult. I'm not sure what other options I have. Do my wife needs to leave the country if I pursue the FTJ option? Thanks.