When is the right time to file my GC-Please advice?

[princess29]

I am currently working in a company ...just got my first H1B filed and approved in November 2011 valid until Nov 2013. I am engaged to be married in about a year from now. My fiance is still studying on an F-1 visa. I was wondering, when would be the best time to file my GC.

I had a few questions:

• Should I file it now or after we are married? Can I add him later to my application, if I file now itself, with no problems to save us time?
  
• Or is it advisable to wait and file after a year along with him.
  
• Also, when will be my priority date for a GC? Is that something linked to the LCA of the H1 application, or is that a diferet date altogether?
  
• Finally what are the important factors I need to keep in mind for this GC process (category, etc.)
  

Please advice the best way I could do this with maximum efficiency and least time wasted for both of us.

Thank you so much!

[maverick41]

If your employer has agreed to file a green card, then it would be prudent to start the process right away, especially if you are not planning to move or take up another job in the immediate future. This will save you a lot of time and headaches later.

You are looking at least 6- 8 months for the 1st stage of the green card/PERM process (i.e. a process for obtaining a labor certification)---the 6-8 months time frame is calculated based on the expectation that you don't run into any delays because of audits.

Time is required for getting all the paperwork to the lawyer, job advertisements, prevailing wage determination (pwd) and filing your labor application.

Please note: the LCA for H1 is different from the labor application for a green card. Your priority date will be the date your labor is filed through the PERM process and is received by the Department of Labor.

The second stage- Petition for Immigrant Worker (I-140). When the I-140 is approved, both you and your spouse must separately file form I-485 (application to register permanent residence) when the priority date becomes current, to obtain green cards.

"One's spouse and minor child/ren are known as derivative beneficiaries. The derivative beneficiaries in an employment-based (EB) green card case are eligible for the same EB category and priority date as the primary beneficiary. Each eligible family member must file his/her own I-485 application (or process for an immigrant visa at the consulate), based on the primary family member's case. " (source: Murthy)

Factors to consider:

• If you are born in India or China your green card process will take longer compared to the rest of the world/ROW countries.

  
  

• Its always good if you fall under a higher EB category (this is based on your prior experience and your current job requirements).
  

There is a wealth of information on this forum, good luck!

[princess29]

Thank you so much! This realy helped!

What if he may fall under the EB-1 and I fall under the EB -2 category? From my undertsanding, on your reply earlier, this would be decided in the second stage after the I-140 is approved.... Is that correct?

So whose ever date is more current, the spouse also obtains the GC at the earlier time?

Also, what are the benefits for filing together/seperately?

What are the disadvantages for filing together./ seperately?

[catx]

What if he may fall under the EB-1 and I fall under the EB -2 category? From my understanding, on your reply earlier, this would be decided in the second stage after the I-140 is approved.... Is that correct?

What are the disadvantages for filing together./ separately?

The employment based (EB) category is effectively determined at the outset of the process, as it is based on the job description and the education and experience of the beneficiary documented in the PERM labor certification application. It is then included in the I-140 petition.

The recommendation is for both parties to start by consulting with a qualified, experience immigration attorney together for advice.

[maverick41]

Glad you found some of this information useful

1. What if he may fall under the EB-1 and I fall under the EB -2 category? From my undertsanding, on your reply earlier, this would be decided in the second stage after the I-140 is approved.... Is that correct?

The EB category will be determined during the first stage when collecting information for the labor certification--- PERM process. If your spouse falls under the EB 1 category then the advantage is that his employer can directly file I-140 and not go through the labor certification process. The best part of EB-1 category is that the visa numbers are usually current/and or available, the I-485 can be filed immediately.

That being said, please keep in mind that the EB-1 category is not that easy to attain, having a PhD or being a professor or multi-national manager won’t automatically qualify one to fall under one of the EB 1 categories, there are a few criteria that must be met along with documentary evidence.

If your spouse qualifies for an EB1 then the scenario would drastically change, waiting for a year may not be a bad idea :)

2. So whose ever date is more current, the spouse also obtains the GC at the earlier time?

Both of you can file your I-485 and even if it’s technically filed together, you will have different case numbers. The basis of the I-485 would be the approved I-140 with the current priority date.

3. Also, what are the benefits for filing together/seperately?

Benefits for filing separately:

- If the green card process takes a long time, the working spouse doesn't need to change to a dependent visa or worry about leaving the country after 6 years. With an approved I-140 your company can apply for visa extensions.

- If one person's job is not stable then by filing separately at least you don't have all your eggs in one basket.

Benefits of including your spouse in the application at a later stage: At least one of you is not tied to the job and can switch jobs when you have a good opportunity (provided you find an H 1 sponsor). It is a hassle to change jobs when the green card process is under way.

Disadvantages of filing separately:I guess the only thing I can think of the paperwork involved and expenses in terms of lawyer fees etc.

Other factors to consider would also be the location of your spouse's job after he graduates. So what I have just written is just friendly advise :)

Good luck!