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Adding spouse to pending 485


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#1 ibee123

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Posted 09 February 2012 - 05:17 PM

H1: since 07/1998
Wife H4: 05/2002 - 06/2007
GC PD (EB3): 07/2003
140 (EB3): 10/2005
485: 07/2007 (wife was excluded as her status changed to J1)
EAD: since 09/2007
Wife J1: 07/2007 - 09/2011
Wife H1 (3 yr waiver) - since 10/2011
Wife 140 (EB2): 12/2011 (pending)

Now, Is it possible to add my wife to my pending 485 and adopt my PD and adopt EB2 from her 140 (after it is approved)?
Thanks in advance for any insight on this.

#2 pontevecchio

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Posted 09 February 2012 - 09:55 PM

It is possible to wait for her I140 approval anf file AOS which in your case would mean changing the basis of your AOS.

#3 Belle

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Posted 10 February 2012 - 09:48 AM

There is no such thing a "adding a spouse". When you use it, it just creates confusion.

"485: 07/2007 (wife was excluded as her status changed to J1)"

Huh? Again, no such thing as "wife was excluded". Did she not file her I-485? Does this J1 have a two year home stay requirement?

No, it is not possible to use your PD with your wife's I-140. The USCIS ends up doing it occassionally, but I thnk it is an error. Also, you can only switch to your wife's I-140 after she files her own I-485, and I am not sure what it would take to file I-485 in her situation.

#4 tummyroad63

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Posted 10 February 2012 - 11:32 AM

ibee123,

I am assuming that your wife is doing J1 waiver for 2 year home country requirement. If your wife is doing J1 waiver, she can not apply for AOS till she completes J1 waiver, even if her I140 is approved. From your post it looks like she will complete her J1 waiver in Oct 14. So she won't be able to apply for AOS till Oct 14 and by that time her PD will be current.

Has she applied for EB2NIW or has done PERM before starting J1 waiver?

#5 tummyroad63

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Posted 10 February 2012 - 12:03 PM

It is possible to wait for her I140 approval anf file AOS which in your case would mean changing the basis of your AOS.


She can not file AOS after I140 approval ( which might happen in 4-6 months), but has to wait till Oct 2014 till she completes J1 waiver requirement.

#6 tummyroad63

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Posted 10 February 2012 - 12:21 PM

There is no such thing a "adding a spouse". When you use it, it just creates confusion.

"485: 07/2007 (wife was excluded as her status changed to J1)"

Huh? Again, no such thing as "wife was excluded". Did she not file her I-485? Does this J1 have a two year home stay requirement?

No, it is not possible to use your PD with your wife's I-140. The USCIS ends up doing it occassionally, but I thnk it is an error. Also, you can only switch to your wife's I-140 after she files her own I-485, and I am not sure what it would take to file I-485 in her situation.


Its very clear from OP's quote and circumstances in July 2007.

OP applied for AOS. His wife had already done COS to J1 ( which I think had 2 year home country requirement and therefore she's doing J1 waiver now) and therefore OP could not include wife on AOS at that time.

OP's wife can not file for AOS primary or drivative till she finishes waiver requirement ( 3 yr or 2 yr home country)

#7 pontevecchio

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Posted 10 February 2012 - 01:21 PM

As so aptly pointed out by tummyroad the terms of the waiver have to be fulfilled before any benefit of an approved I-140 can be availed of.


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