Adding spouse to pending AOS Application

[agarwalmaneesh]

My AOS was filed in Nov'2020 but my wife is not part of the AOS as she was out of US due to corona travel ban. My my PD (EB3) is Oct'2011. So PD is current in final action chart. I don't have I140/ EAD/AP yet.

Once my wife is in US on H4, i will file her AOS (or you can say- add her to my pending AOS).

Attorney tells me- I don't want to receive GC unless her AOS has been filed otherwise- wife's H4 becomes invalid and then I will need to file consular processing for my wif which is ~2 year wait.

 

Question is - At what stage of my wife's AOS- is it safe for primary (me) to go get my GC?

A)-wife filing 485,

B)wife gettign 485 receipt

C)wife getting EAD

D) wife getting GC

 

[newacct]

You don't want to become a permanent resident (which happens when your I-485 is approved) before she enters the US on H4, because as soon as you become a permanent resident, you are no longer on H1b status, and she cannot enter on H4.

Once she enters the US, she can file I-485 (in any month where your category and priority date can file I-485), either before or after your I-485 is approved. If your I-485 is approved before she files I-485, you become a permanent resident and thus lose H1b status, and she loses H4 status, but since you guys are in an employment-based category, INA 245(k) applies, which means she can still file I-485 as long as she has not been out of status or working illegally for 180 days since her most recent admission. So a short gap of being out of status between your I-485 approval and her filing I-485 will not matter.