Hi gcquestion,
From what I could gather, if your wife waits to file her 485 petition,
she could encounter problems. She can file easily if your petition
has not been approved and your priority date is current, but once your
petition has been approved, if she decides to file, she will have to
wait until your priority date on your petition is current again.
The US only allows certain quotas of people entering from each
country. When enough people from that country have been approved for
the year, a backlog is created and no more will be approved that year;
applicants must wait until the next year. Applicants are placed on a
list with preference given to the earliest case filings. This is
called the "priority date," and for someone in the backlog, it might
take awhile for it to become current again (this depends on what
country you're from).
You do, however, have EB1 status, which gives you first preference
over EB2 and EB3, so that will help your wife. It is possible,
however, that if she waits to file, she might not be able to get new
status before her status expires in a year.
From the American Immigration Lawyers Association:
http://www.usimmigrationlawblog.com/employment-based-immigration-visa-retrogression-questions-answers.html
"MY I-485 WAS ALREADY APPROVED. HOWEVER, MY DEPENDENT'S APPLICATION IS
STILL PENDING AND MY PRIORITY DATE IS NO LONGER CURRENT. IS MY
DEPENDENT'S APPLICATION AFFECTED BY THE QUOTA BACKLOG SINCE MY
APPLICATION IS APPROVED?
Yes. Even through your case was approved, your dependent's application
is still based on your priority date. The CIS cannot approve the
dependent's application until the priority date is current."
"MY ADJUSTMENT APPLICATION IS PENDING AND I RECENTLY MARRIED. CAN I
ADD MY SPOUSE TO THE APPLICATION (LE. CAN MY SPOUSE FILE THEIR I-485)
IF MY PRIORITY DATE IS NOT CURRENT?
No. In order to add a dependent to the pending application, the
priority date must be current."
Search terms:
filing 485 spouse
current priority date spouse 485
Good luck with your situation and if you need any more help, just ask
for clarification and I'll be happy to help!
--keystroke-ga |
Clarification of Answer by
keystroke-ga
on
26 Aug 2006 15:58 PDT
Hi gcquestion,
I've been away for a few weeks on a trip-- I'm sorry about the delay
in answering your clarification questions. Thank you for your
patience!
To clarify your latest question-- the only problem that she would have
filing her application after yours has been approved, as far as I
could find during my research, was that your priority date might not
be current and she would have to wait until it's current again. Other
than that, I didn't find any specific problems that she might face. If
you have a priority date that will be current after your application
is approved, your wife should be free and clear!
For your first question: no, there are no legal issues involved with
your wife's situation unless your priority date is not current. (Keep
in mind, however, that caveat at the bottom of the page-- Google
Answers is not allowed to provide definitive legal advice, only a
guideline.)
There are many cases in which people get married after their visas are
approved, and the main obstacle their spouses face to getting a
dependent visa is that the priority dates are not current. So, the
fact that her applicaton has not been submitted yet does not have as
much bearing on the process as those pesky priority dates do. As long
as you're from a country with not too many emigrants to the US, you
should be fine!
The big problem that your wife would have is if the priority dates are
not current, she could be out of status after her visa expires. If
your priority dates are current, she should be fine and would never be
out of status.
Here are a few discussions I could find on the matter from alt.visa.us.
http://groups.google.com/group/alt.visa.us/browse_frm/thread/1359a4cdb1aa2d5e/5086e902156bc579?lnk=gst&q=add+spouse+after+485+approved&rnum=1#5086e902156bc579
"In that case, between your I-485 approval and the day your wife files
her I-485, she would be out of status. Since it's likely only going to
be a few days (be very sure to prepare the I-485 well so it won't get
rejected!), there is a good chance INS would ignore it and treat it as
filed on time."
http://groups.google.com/group/alt.visa.us/browse_frm/thread/e55beceba4333e14/6e95dd4b6ce916a8?lnk=gst&q=add+spouse+after+485+approved&rnum=2#6e95dd4b6ce916a8
"> 2) Is is possible to add a spouse in the Green Card process (thru'
> 485) once after the primary applicant has done the FP (assuming GC is
> not yet approved)? Is there any repercussions for doing this?
Yes. You can file an I-485 for a spouse at any time after your I-485 is
filed (even after your I-485 is approved; in that case, it would be
considered a follow-to-join case). The only repercussion of doing so is
that if you just got married, INS may look at your and her case more
closely, suspecting fraud."
From what I can tell, as long as your priority date is current, and
since you were married before you filed the original 485 application,
your wife should not encounter a problem filing after yours is
approved. If you need any more clarifications, let me know and I'll be
glad to help!
Search terms:
add spouse after 485 approved
--keystroke-ga
|
