Spouse I-485: When can I file?

[dilll]

Dear All,

My I140 has been approved and my I-485 is pending (filed in Oct 2005). My Priority Date is current as of June 1st 2006.

My wife is on a student visa. We haven't filed her I-485 yet. My question is regarding when we should file it.

The problem is that once her I-485 is filed, it puts her in a gray area with respect to her F-1 status. If at all her I-485 is denied, she won't be able to go back on F-1. Also, she will have to travel a lot outside the country next year and I don't know what will happen if she uses Advance Parole to re-enter the country.

What I want to know is whether we can file her I-485 after mine is approved. Clearly, we have been married before my I-485 approval and she is "in status" on her F-1 visa even after my I-485 is approved. (i.e, the problem of going out of status on H4 does not apply). I read in a Murthy bulletin that there is a 180 day grace period for filing for spouse I-485 if the marriage occurred before the I-485 approval. Does this apply also when the spouse is on F-1 visa?

It would be great if you can help me out with this. We have her I-485 application all set up - just waiting to see when to file it.

Many Thanks
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[TheRealCanadian]

If at all her I-485 is denied, she won't be able to go back on F-1. Also, she will have to travel a lot outside the country next year and I don't know what will happen if she uses Advance Parole to re-enter the country.

Unless there's some special reason, why are you so worried about her I-485 getting denied? And why are you worried about what'll happen if she uses AP? She'll be paroled into the US, like 99.999% of all AP users.

I read in a Murthy bulletin that there is a 180 day grace period for filing for spouse I-485 if the marriage occurred before the I-485 approval. Does this apply also when the spouse is on F-1 visa?

Yes, but why would you wish to delay your wife's case so much? I'd file it immediately if her PD is current.

 

[dilll]

Unless there's some special reason, why are you so worried about her I-485 getting denied? And why are you worried about what'll happen if she uses AP? She'll be paroled into the US, like 99.999% of all AP users.

Yes, but why would you wish to delay your wife's case so much? I'd file it immediately if her PD is current.

She is receiving a fellowship from the university. It is contingent on she being on F-1 status. If she uses AP she might lose her F-1 status. (I don't know- the law seems to be pretty vague here). In general, filing an I-485 while on F1 is considered bad because of the "non immigration intent" clause associated with F1 status.

 

[TheRealCanadian]

She is receiving a fellowship from the university. It is contingent on she being on F-1 status. If she uses AP she might lose her F-1 status.

How much is the fellowship, and is it worth delaying her permanent residency by several months or years? Has she confirmed with the University that it would cease if she became an adjustee.

In general, filing an I-485 while on F1 is considered bad because of the "non immigration intent" clause associated with F1 status.

Unless she entered in F-1 status less than 90 to 180 days before filing the I-485, I wouldn't worry about this at all. My wife filed her I-485 in B-2 status.

 

[dilll]

How much is the fellowship, and is it worth delaying her permanent residency by several months or years? Has she confirmed with the University that it would cease if she became an adjustee.

Thanks for your answers.

Yes, the fellowship is substantial because it includes tuition fee. Otherwise we will have to pay the tuition. All combined it is a difference of about 55K per year.

Unless she entered in F-1 status less than 90 to 180 days before filing the I-485, I wouldn't worry about this at all. My wife filed her I-485 in B-2 status.

That is also a worry. She renewed her F1 visa in Nov 2005 and we got married in Jan 2006. I wouldn't want her I-485 application to raise any red flags.

What are the consequences if we delay her I-485 a few months and if mine gets approved before we file hers? Will we still be able to file her I-485 or should she have to go through "Follow to Join"? I think a few months of delay in filing her I-485 doesn't matter to us at this stage because she will be on F1 for more than a year from now. I am more worried about the consequences of mine getting approved before we file hers.

Thanks for your answers. I greatly appreciate your help.