Strange case: Marriage and I-485 approval

[mat s]

Hi,

My friend is in a very strange situation:

- He had applied for Employment-based I-485 one year ago.
- He was about to travel to India to get married in September.
- On the day he was leaving USA, his I-485 got approved.
- He went to India and got married.
- After the marriage, he and his wife went to the US consulate
and got H1 and H4 visas.
- They re-entered back into US few days ago, the INS officer did not ask
anything at all. Their I-94 shows H1 and H4 respectively.

- Is there any chance he can apply for his wife's I-485 AOS
using his I-485 case.
- Or if that is not allowed, what are the other alternatives:
can he forfeit his I-485 and re-apply for a fresh I-485 with his wife.

Can you please help?
Would really appreciate it.

Thanks,
Mathew

 

[pralay]

- Is there any chance he can apply for his wife's I-485 AOS
using his I-485 case.

If they got married after I-485 approval date, unfortunately not.

- Or if that is not allowed, what are the other alternatives:
can he forfeit his I-485 and re-apply for a fresh I-485 with his wife.

I think she has only path - consular processing (as family based).
Surrenderring GC and going to make H1, H4 status? I am not sure, about it.
There is a way to return GC card in nearest US consulate when someone leaves USA and gives up perm resident status. But immediately going back to non-immigration status? Not sure.

 

[mat s]

Another thing to note is that he has not got his passport stamped
with the "permanent-residence" stamp.
i.e. he has not gone to the Local INS office for temporary stamping.
He also does not have his "plastic" green card because of the above reason.

Does that affect this case in any way?

 

[pralay]

Another thing to note is that he has not got his passport stamped
with the "permanent-residence" stamp.
i.e. he has not gone to the Local INS office for temporary stamping.
He also does not have his "plastic" green card because of the above reason.

Does that affect this case in any way?

No. Having or not having passport stamp or plastic card does not matter. He is a perm resident from the very day of approval.

 

[tammy2]

Another thing to note is that he has not got his passport stamped
with the "permanent-residence" stamp.
i.e. he has not gone to the Local INS office for temporary stamping.
He also does not have his "plastic" green card because of the above reason.

Does that affect this case in any way?

Another potential problem might be her status. Since H1 is no more valid H4 is also invalid may be subject 3 years/10 year bars.
Ask the to talk to some good attorney.

 

[mat s]

Well since they entered US in H1/H4 status, does it not affect the I-485 status.

 

[pralay]

Well since they entered US in H1/H4 status, does it not affect the I-485 status.

Logically it does. But that can be discounted assuming the beneficiary and his dependent were not aware of GC approval before departure, while staying abroad or before entering.

 

[fast_gc_seeker]

Another potential problem might be her status. Since H1 is no more valid H4 is also invalid may be subject 3 years/10 year bars.
Ask the to talk to some good attorney.

I dont think her H4 can be an issue at this moment. She is already inside the
county legally. Now her H4 does become invalid once she leaves the
country as her husband cannot apply for her AOS/AP blah blah...

Logically thinking H4 should not have been issued as H1 becomes invalid immediately after 485 approval. I guess she could get her H4 because US consulates overseas are not immediately notified of someones
485 approval.


I would hate to be in this situation. Dosent make any sense to me
about these immigration rules which allows a visa holder to bring
his/her dependent into this country but discriminates against
a permanant resident.

 

[Jim Mills]

Arguably, the wife is deportable sicne she was inadmissable at time of entry. The visa that she had was invalid. Worse, she knew it was invalid when she obtained it and entered the US.

 

[fast_gc_seeker]

Arguably, the wife is deportable sicne she was inadmissable at time of entry. The visa that she had was invalid. Worse, she knew it was invalid when she obtained it and entered the US.

Jim, I hope u r not inferring that beneficiary is supposed to know
the rules more than the visa officer who issued the visa.
Arent they supposed to check everything before visa is issued?

Morever, her husband came to know just one day in advance
before he left US that his 485 is approved. lets suppose
he didn't knew that his 485 is approved which technically means
he considered himself on H1 when he applied for her H4 so how
in this world can her application and visa be considered illegal
when she was legally allowed to enter on her H4?

 

[tammy2]

I dont think her H4 can be an issue at this moment. She is already inside the
county legally. Now her H4 does become invalid once she leaves the
country as her husband cannot apply for her AOS/AP blah blah...

Logically thinking H4 should not have been issued as H1 becomes invalid immediately after 485 approval. I guess she could get her H4 because US consulates overseas are not immediately notified of someones
485 approval.


I would hate to be in this situation. Dosent make any sense to me
about these immigration rules which allows a visa holder to bring
his/her dependent into this country but discriminates against
a permanant resident.

Being in this country does not bring any special privileges unless you are an immediate relative of US citizen. I do not know by not going to the stamping pretending as if you were unaware of the approval GC will help him/her or not. Some one said they approve such cases on humanitarian grounds . It is an attorney matter.

 

[fast_gc_seeker]

Being in this country does not bring any special privileges unless you are an immediate relative of US citizen. I do not know by not going to the stamping pretending as if you were unaware of the approval GC will help him/her or not. Some one said they approve such cases on humanitarian grounds . It is an attorney matter.

I agree that her H4 visa is invalid as her husband is no longer
on H1. But I dont think inspite of the above she is staying illegally
as she was allowed to enter on H4 and also should have valid I-94.
As long as ur I-94 is valid you are legal. Thats what many legal
experts also say. She cannot enter back for sure if she leaves
the this country. I'm not too sure if she can be deported as
I dont believe she is staying illegally.

 

[tammy2]

Just having valid I-94 does not keep you in status. There are two things we have to keep in the mind while we talk about the status. Purpose and time. If someone comes here on a student visa does not go to school he will loose his status even though he has valid I-94. Similarly some one on H1 without a job is also out of status. Some time no one will notice this and is excused. Other one is overstay which will be noticed immediately.

In this case there is very good chance that officer will notice the approval date. He can figure out she entered with an invalid status. If you are ignorant about the law that cannot be taken as an excuse. She will be at the mercy of the officer.

 

[chakbar78]

H-4 status after I-485 approval

I am in the same situation. I filed my I-140 and I-485 concurrent. I had my wife on my I-140 but didnt file her I-485 since she was out of the country. She is a Canadian citizen so we thought that since she can come to USA as a Canadian citizen and doesnt require a visa we can do her Counsular Processing after the I-140 approval which would be quicker that I-485.

I am also maintaing my H1 visa which is valid till 04/2006. Last week she got her H4 based on my H1 and is planning to come here in November for good on that H4.

Yesterday, I got approval of my I-140 and I-485.

Question is that can she still have the H4 privileges since now I am a permanent resident not a H1 anymore?

Can she enter USA as a Canadian without a visa since she also has an immigrant visa approved for her based on my approved I-140.

Please help!

 

[pralay]

I agree that her H4 visa is invalid as her husband is no longer
on H1. But I dont think inspite of the above she is staying illegally
as she was allowed to enter on H4 and also should have valid I-94.
As long as ur I-94 is valid you are legal. Thats what many legal
experts also say. She cannot enter back for sure if she leaves
the this country. I'm not too sure if she can be deported as
I dont believe she is staying illegally.

But the problem is that if she stays in USA for longer time (say, validity of I-94), it can go against her in future. After she arrived in USA, her husband came to know about GC approval and even after that if she does not leave USA (because she already knows that her H4 is no longer valid) - that would indicate that she never intented to follow the immigration rule. That could be serious.

 

[TheRealCanadian]

I am also maintaing my H1 visa which is valid till 04/2006. Last week she got her H4 based on my H1 and is planning to come here in November for good on that H4.

You mean she entered the US and obtained H-4 status at the POE? If she's still in the US, she should stay here and you should file the I-485 ASAP.

Can she enter USA as a Canadian without a visa since she also has an immigrant visa approved for her based on my approved I-140.

Maybe. She might be able to enter as a visitor so long as she demonstrates *clear* ties to Canada, like a house, job, etc., etc. and even then it's a crap shoot.

What you should have done is have her enter on an H-4 at any earlier time, file the I-485 and then return to Canada.

 

[chakbar78]

I-485 or Counsular Processing?

You are absolutely correct, I should have done that. The problem is that you can only file I-485 after 60 days of arriving in USA and she had to go back because of her school.

Now since she wanna move here for good her H-4 status is not invild (I think). One idea is that she keeps on coming back and forth till she gets her GC through counsular processing or I file her I-485 and she stays put in USA.

Which one is quicker after I-140 approval? I-485 or Counsular Processing?

Thanks so much for the comments

 

[TheRealCanadian]

You are absolutely correct, I should have done that. The problem is that you can only file I-485 after 60 days of arriving in USA and she had to go back because of her school.

That is most unfortunate, since there is no 60 days requirement for H or L status. She could have filed the day she arrived.

Now since she wanna move here for good her H-4 status is not invild (I think).

Her H-4 status is dead and gone, never to return. The basic requirement for H-4 status is that she be the spouse of an individual in H-1 status. Since you are no longer in H status (you are a permanent resident) her H-4 is toast.

One idea is that she keeps on coming back and forth till she gets her GC through counsular processing or I file her I-485 and she stays put in USA.

You cannot file an I-485 for her, since it's highly unlikely that she will be able to return as a visitor. If she does and you file, then it's likely USCIS will nab her for misrepresentation when she entered (and they will KNOW she entered as a visitor since she will have no I-94).

File an I-824 and get the CP process started.

 

[chakbar78]

counsular processing AC I-140

Thanks for the reply, do you have any idea if Montreal Consulate accepts the AC I-140 (Attorney Certified I-140). If they do, they will send the packet 3 right away.

It would save a lot of time since I-824 is taking about 1.5 - 2 years now in TX.

Thanks once again for your valuable comments. Its a big help.

 

[fast_gc_seeker]

But the problem is that if she stays in USA for longer time (say, validity of I-94), it can go against her in future. After she arrived in USA, her husband came to know about GC approval and even after that if she does not leave USA (because she already knows that her H4 is no longer valid) - that would indicate that she never intented to follow the immigration rule. That could be serious.

absolutely right...

So I guess the only alternative for her is to leave this country on her
own b4 she can be in trouble.

Its so unfortunate that once somebody becomes a permanent resident they cant bring their luved ones but this is possible for visa holders. Weird rule