Want to marry foreign national AFTER having applied for 485

L

legalInDC

Registered Users (C)
Hi gurus,
I have applied for an EB3 485/AOS in September 2007. I have already recevied EAD/AP. I have already done FP in Oct 2007. I want to get married to my colombian girlfriend who is here on a tourist visa. I know it is a pain in the ass, but how much of a pain is my question. Can anyone shed some light on how this will work? I have sent an email to HR yesterday, they are probably consulting with the lawyers. I thought I would get a faster and more detailed answer here. Please advise.
 
After you marry it is necessary to include your wife in the GC Petition. Now, is your priority date is current? If yes, then you can file a I-485 for your wife. Otherwise, if you still maintain a non-immigrant work visa (for example H-1B) then you can file a change of status application for dependant visa.
 
I don't remember saying that PD is not applicable to you ... BTW - the LC filing date is the PD.

The phrase "I am waiting on my "processing date" to be current" implies that your PD is not current ... right?

Since you have H-1B, your wife can apply for H-4 either through COS (while in the U.S.) or from her home country. Once the PD is current, file for her I-485.
 
I am sorry I misunderstood. No my PD is not current, but what I meant by "I am waiting on my "processing date" to be current" was the processing date at the TSC. Now I understand that I should not go by that date, but I should go by the PD.

The lawyer advised me that my h1 b was no longer valid as i came back to the US on AP
Here is the lawyer's full response.

Since you are technically not in H-1B status due to the advance parole travel, you cannot presently bring a spouse to the US in H-4 status.



If you travel on your H-1B visa (not AP), you potentially jeopardize your pending I-485 application because you are traveling on an H-1B visa after having traveled on advance parole. In this specific scenario, there is a potential that the CIS will deny the I-485 stating that you abandoned the application by traveling on the H-1B.



So you have three options:



Option #1: Travel on your H-1B visa and reenter the US in H-1B status, bringing your spouse to the US in H-4 status. You will not know whether or not this travel has brought about a denial of the I-485 until the CIS adjudicates your I-485. Based on current retrogression tables, the I-485 may not be processed for another 1 year and 10 months. If the I-485 is denied, you will have to refile the I-485. However, your I-140 and LCP will remain valid. Regardless of the CIS decision on your pending I-485, you will have to file an I-485 application for your spouse once your priority date is current (approx 1 year and 10 months based on the current report). Your spouse will not have work authorization until an I-485 petition can be filed on her behalf along with an EAD application (again, it will be potentially 1 year and 10 months until an I-485 can be filed for your spouse).



Option #2: File an H-1B extension with the CIS now for an immediate start date and an extension through 2011. The filing of an H-1B extension will change your status from parolee to H-1B. This will not jeopardize your pending I-485. Once the H-1B extension is approved, you can travel on your H-1B visa and secure an H-4 visa for your spouse. Then once your priority date is current (approx 1 year and 10 months based on the current report), we can file an I-485 petition for your spouse so that she can secure a green card based on your pending application. Your spouse will not have work authorization until an I-485 petition can be filed on her behalf along with an EAD application.



Option #3: Leave the US and get married. Return to the US on Advance Parole. Your spouse remains outside of the US. We will file an I-824 petition to file for her green card based on your pending application. Your spouse will have to remain outside of the US until your priority date is current and the green card is processed on her behalf at a US consulate abroad. Based on current processing reports, this could be more than 1 year and 10 months in the future. During this time your spouse will remain outside of the US.
 
hi there,

I am under a similar situation..

H1B expiring April 30th, 2008
I-140 still pending (TSC)
EAD approved, have advanced payroll, travelled only in H1B (never used payroll)

I am planning to marry & if I bring back my spouse on H4 before April 30th, the lawyer says they can't file a I-145 for her until the processing date is current.

#1 How do you know your processing date ? Is the processing date my application received date for I-485 compared with the current date shown in USCIS website ?

#2 If #1 is true, then it probably means that I must wait for another year before I can file I-485. In the meantime how can I maintain status for spouse ?

Can I extend an H4 based on my I-485 application (I am thinking probably I can't extend because my I-140 is still pending. Is this a correct assumption ?).

Appretiate the help.

Yog
 
Answers below:
1. It's the priority date (PD) that plays it's role ... PD is the date on which your labor Certification was filed (or I-140 in case the LC is waived). The I-485 cutoff dates are published (monthly) here. Based on your employment category and country of charge-ability, you can file your spouse's I-485 only if the cut off date is later than your PD or current.
2. If your PD is current then you can file for your spouse's I-485 immediately (upon her arrival to the US). Otherwise you have to wait.
3. You can extend H-4 as long as you maintain H-1B status in the US.

By the way it seems that you can travel on H-1B and bring your spouse on H-4 by visa stamping at a consulate.
 
Thanks much..that helps..priority date is not current in my case

Labour file date : 6/8/2007 (EB2 perm)
Priority date TSC : Dec 1, 2003
EAD : Oct 9, 2007
Payroll : Oct 9,2007

Should I keep watching the priority date and apply for spouse immidietely after it becomes current..

I am worried that the H4 may become invalid once my I-485 is approved (before even the priority date becomes current)... Is this possible...Any idea what are the consequences and how to handle the situation ?

Since I already got my EAD, does that mean my application is already under process even though priority date is not current?

Are there any other sources other than the USCIS website to track the priority dates ?

Thanks much
Yog
 
You must log in or register to reply here.
Top