Wife i485 5 months after mine

[maverick13]

My LC got approved recently. I would like to apply for my concurrent i140/485 ASAP under EB-2. However my wife is on F-1. Also we will be travelling to India in December. I want to come back on H1B as I have 4 more years on it and my wife would like to come back on F-1. That way we wont have to apply for Advance Paroles.

1) Can I apply my 485 right now and my wife's 485 after returning from India, in January? Is there a problem doing so?

People, please help!

 

[needgchelp]

you can apply 485 for both you and your wife now. don't apply for AP. even if you have AP you can still come back on H1 and your wife on F1. what's the issue.

 

[pralay]

you can apply 485 for both you and your wife now. don't apply for AP. even if you have AP you can still come back on H1 and your wife on F1. what's the issue.

That is not correct. Once she applies for I-485, her F1 is void. She cannot use it for re-entry. She must use AP in that case.

 

[pralay]

1) Can I apply my 485 right now and my wife's 485 after returning from India, in January? Is there a problem doing so?

Yes, she can, provided your PD is current when she is applying for I-485. Even though EB2 PD is current now, but there are speculation that there will be cut-off dates for India+China+Philipines in near future.

Now, you decide if saving AP application fee worths that kind of risk.

 

[maverick13]

Thanks gsneedhelp and pralay for your quick responses. This forum rocks!

Pralay, its not about saving AP application fees. My lawyer told me its taking about 3-4months to get AP approved. So its a risk as it wont come in time for December.

Yor are right about the other part: My attorney did mention that once 485 is filed for her, she cannot come back on f-1 as f-1 is voided.

If I hold off her appn for now there's the fear of retrogression from Dec 2005. However assuming that PD is current for EB-2 in Jan06 then is there any other problem if wife's 485 is filed at a later time?

Yes, she can, provided your PD is current when she is applying for I-485. Even though EB2 PD is current now, but there are speculation that there will be cut-off dates for India+China+Philipines in near future.

Now, you decide if saving AP application fee worths that kind of risk.

 

[pralay]

Pralay, its not about saving AP application fees. My lawyer told me its taking about 3-4months to get AP approved. So its a risk as it wont come in time for December.

It's true that it can take time and it may not come through before your travel date. Which server center are you going to file? CSC, TSC are processing July 2005 applications. Others are processing June 2005. If you are in CSC/TSC there is a good chance that you are going to get AP before December.

In the end it's your call to weigh the risk between not getting AP before travel date and your wife not able to apply I-485 after 5 months. If I was you I would not mind to postpone travel date, if AP does not come through before travel date.

If I hold off her appn for now there's the fear of retrogression from Dec 2005. However assuming that PD is current for EB-2 in Jan06 then is there any other problem if wife's 485 is filed at a later time?

No, I don't see any problem. Only issue is that as she is applying late, her GC approval also can be delayed accordingly. If I was you, I would prefer my wife to get her GC five month early, instead of sticking with travel date.

 

[LaborBadhi]

Thanks gsneedhelp and pralay for your quick responses. This forum rocks!

Pralay, its not about saving AP application fees. My lawyer told me its taking about 3-4months to get AP approved. So its a risk as it wont come in time for December.

Yor are right about the other part: My attorney did mention that once 485 is filed for her, she cannot come back on f-1 as f-1 is voided.

If I hold off her appn for now there's the fear of retrogression from Dec 2005. However assuming that PD is current for EB-2 in Jan06 then is there any other problem if wife's 485 is filed at a later time?

AP is not taking more than 40days in VSC.

 

[maverick13]

Thank you ppl, my service center should be CSC.
Unfortunately travel date for me is extremely rigid due to some personal reasons, so lets see, I will talk to my attorney again.

 

[maverick13]

i824

Pralay

Is there such a rule ?

if Primary Green Card gets approved before filing of secondary(dependent's) application, there is a grace period of 6 months to add spouse using the follow-to-join procedure, provided marriage had taken place before filing of primary's i485. This procedure does not depend upon retrogression / availability of immigrant visa numbers. (Making use of i824 route).

Note: I am talking about employment based immigration only, not family based.

Can anyone confirm or discard this as untrue?

 

[pralay]

Pralay

Is there such a rule ?

if Primary Green Card gets approved before filing of secondary(dependent's) application, there is a grace period of 6 months to add spouse using the follow-to-join procedure, provided marriage had taken place before filing of primary's i485. This procedure does not depend upon retrogression / availability of immigrant visa numbers. (Making use of i824 route).

Note: I am talking about employment based immigration only, not family based.

Can anyone confirm or discard this as untrue?

Not sure what rule you are trying to point. Is your question regarding I-824?
If so, the answer is yes it gets affected by visa number availability. Any application (I-485 or I-824) are subject to visa number availability.

Regarding 6 month grace period. There is no law that provides "grace period". However, if a person is out of status less than 180 days, 245(k) rule can cover him/her. But this certainly not a "grace period".

But I am not sure why you are thinking about 6 month grace period. In your case, your wife has F1 visa and it will be valid until she applies for I-485.

 

[maverick13]

Alright, I think I got it all confused, sorry about that.

Basically I am thinking of applying my 140 and 485 ASAP. After Dec trip to India I will return on H1B and wife on F-1 (Both of us have always been on valid visas statuses). Then in Jan we are looking to apply 485 for wife as dependent. However obviously if retrogression sets in, as you pointed out, I may not be able to file her 485 for quite some time:till my PD gets current. Now in that time if my GC gets approved, I have heard that I can no longer add my wife as a dependent AOS. I will have to go the family-based route which is really long and tedious.

But a friend of mine says that even if I do land in this situation I have a 180-day grace period after my GC is approved to add wife as dependent using the follow-to-join procedure (i824 consular processing). I wanted to know if this is true?

 

[pralay]

Now in that time if my GC gets approved, I have heard that I can no longer add my wife as a dependent AOS. I will have to go the family-based route which is really long and tedious.

But a friend of mine says that even if I do land in this situation I have a 180-day grace period after my GC is approved to add wife as dependent using the follow-to-join procedure (i824 consular processing). I wanted to know if this is true?

Your friend give you incorrect information. You can add your wife anytime in follow-to-join AOS/CP provided you were married before your I-485 approval. There is no concept of 180 days grace period timeframe (I know why your friend said so, but I don't want to confuse you farther by giving you too many information). Basically your wife has to maintain F1 status until she is eligible for I-485 application (based on visa number availability). For example, if she is not able to apply for her I-485 in next two years, she needs to maintain F1 status for that two years. In addition, if meanwhile if any F1 visa renewal (passport stamp) is required it will be almost impossible to get it (because your are a GC holder and F1 is purely non-immigrant visa).

 

[maverick13]

Makes sense, thanks!

Your friend give you incorrect information. You can add your wife anytime in follow-to-join AOS/CP provided you were married before your I-485 approval. There is no concept of 180 days grace period timeframe (I know why your friend said so, but I don't want to confuse you farther by giving you too many information). Basically your wife has to maintain F1 status until she is eligible for I-485 application (based on visa number availability). For example, if she is not able to apply for her I-485 in next two years, she needs to maintain F1 status for that two years. In addition, if meanwhile if any F1 visa renewal (passport stamp) is required it will be almost impossible to get it (because your are a GC holder and F1 is purely non-immigrant visa).