Questions on I-485 filing and J-1 waiver

[hithere!]

My spouse could file I-485 (Employment based) now since the PD just became current. I am on J-1 visa and haven't applied for the waiver yet. So in this case, what should my spouse do? Should he file I-485 alone? Then after I get the waiver I can file family-based? Or can he file I-485 for both of us? Does the rule say that one has to have a J-1 waiver before "filing" I-485 or one has to have it before I-485 gets approved? That would make a big difference. Thanks!

 

[jk0274]

1. Generally, you cannot file for I-485 if you are subject to the home residency requirement (HRR). You may file I-485 if you have a "no objection" based waiver application pending at USCIS at the same time, but the case can only reach USCIS once the State Department has processed your waiver application and issued a recommendation to USCIS to grant a waiver. Since you have not applied yet, you are thus ineligible to apply for adjustment of status with your spouse.

2. It is up to you to decide if you want your spouse to file alone or wait until you at least get your favorable recommendation, something that could take a minimum of 4-10 weeks depending on many factors including the speed with which your embassy sends a 'no objection' statement to the State Department. Be aware that immigration laws can change vis-a-vis family based petitions, or that visa number availability will be retrogressed again soon.