AOS for primary and CP for dependant


ramram2010

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I am currently on H1B that expires on April 21, 2012 and I am maxing out on Dec 31, 2012. My employer is yet to apply for my H1B extension and it is under progress and it will be done soon. My PERM under EB2 was applied on September 30, 2011 but, an audit notice was issued by USCIS. My employer responded the audit notice on Jan 11, 2012. We are still waiting on it. In the best case, I am hoping to get my H1B extended and in the mean time, I am hoping to get I-140 approved so that I can legally work here in the US with H1B status until get my GC.

In the worst case, if my extension gets a denial notice, I have to go back to India.

I have another option. My wife is also employed under the same employer as mine and her priority date is Aug 26, 2010(EB2). Due to the recent movements in the EB2 current date, I am hoping that her priority date will become current in next two months. If that happens, what are the options we have if my extension is denied and I had to go back to India after April 21, 2012

Option 1: Can my wife stay here in the US and apply for Adjustment of status? In such a case - can she include my name in the I-485 and AP even though I am outside the country? Upon receiving EAD, can I travel back to the US with EAD or AP ?

Option 2: Can my wife stay here in the US and apply for Adjustment of status and apply CP for me while I am in India. If my visa gets approved abroad? can I attend the interview alone and come back to the Us with EAD?

Option 3: Can my wife go for Consular processing when the priority date becomes current in stead of AOS and include my name as her dependent and can we both attend interview in a consulate in India to get to get our visa stamped? How does this CP work? Can we both work immediately after returning from India to the US ?

Other than the above if anyone could suggest a good option then it would be great.

Please note:-

1) I do not want to lose/ resign my job and reside in H4 status without the Job until I get EAD. 2) Both of our employers are popular consulting company in India and I can go back, get my H1B re appealed and come back to the US with in 6 months to 1 year.

3) Our employers would apply only in AOS and they will not apply in CP. But, they will support by providing any documents including I140 info, other employment details and any other documentation if we consider CP with a third party attorney.

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A dependent is never included on an I-485. A dependent who is in the US can file his or her own I-485.

If the dependent is outside the country and can't enter on, e.g., H1 or H4, the dependent can do follow-to-join once whe I-485 of the primary applicant is approved.

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Thanks JoeF-

I have couple of more questions.

1) If I485 was approved for my spouse, then that means that my spouse would have received EAD. Assume that she has not got the green card yet, then can I apply for follow to join ?

2) If I485 was approved and if the green card was delievered to my spouse, can I still apply follow-to-join? Or, do I need to go for family based green card processing?

In any case, does my spouse need to mention before hand that she has a married dependent (me) living abroad ? How long does it normally take to get EAD(EB2) in follow-to-join process?

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You have a whole lot of confusion going on...

I-485 is the green card application. One per person. When it is approved, one gets a green card. While I-485 is pending, one can get an EAD/AP. EAD is for work in the US, and AP is for travel. You seem to prescirbe EAD/AP magical qualitities it does not possess.

If you are married before the approval of primary's green card (I-485 or consular processing), you are eligible for a green card as a derivative. As long as derivative's application is not denied, you maintain eligibility. Theoretically, you may file 10 years after primary's approval, and you will still be a derivative.

If you would like to have consular processing for a derivative, there are two ways. Either both primary and derivative go through consular processing together (no I-485s or EADs/APs), or the primary requests following to join after the approval of his/her AOS (I-485). Following to join is usually requested by filing I-824. I am not sure whether the primary may file while his/her I-485 is still pending, but it is for sure possible to file after the approval. Following to join takes several months, probably 6+.

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An EAD has nothing to do with I-485 approval. An EAD is issued if the I-485 is pending and the person has applied for an EAD.

If the couple can show that they were married before the I-485 approval, follow-to-join is standard procedure. If the marriage happened after I-485 approval, then it would be afamily-based GC in family category 2A.

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"can my spouse file AOS for her self and can she initiate consular processing for me at the same time ?"

Ask your lawyer. My understanding that though it is possible to start on the CP for the spouse, it is really not going to get set into full motion until I-485 is approved.

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I am in a similar situation. It is possible that my wife's application who is a derivative application may be denied due to non availability of pay stubs for a period of little more than 180 days. If it happens that my AOS is approved and her AOS is denied,

1. can she reapply again for consular processing?

2. Won't the same requirements for maintaining status apply for approval for CP?

3. If CP is also not successful, can I apply for family based F2A and whether this 180 out of status cause issues in family based application as well?

Can someone help me with these questions?

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1. Yes. In fact, she may leave the country, re-enter (she can do it now), and then simply re-file AOS. I would leave CP at the last resort option.

2. No. However, you should check with the laywer - and this is almost mandatory - that there is nothing else that can hold up the case. For example, if it's more than out of status, i.e. unauthorized presence, then she might be subject to entry bars.

3. The same thing will apply to F2A. Plus, it will take a long time to get into F2A. Your wife may as well wieght it out in the US until you become a citizen. She can stretch it out for a while by appealing AOS.

She should talk to a lawyer and see if she needs to re-enter the country. It might be difficult for her to do it later if her status is dependent on yours, and your green card is approved.

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Belle, Thank you so much for your response. Can you please help me with these questions based on your response.

1. Is there any reason why you say CP should be avoided?

2. The current priority date for India F2A is 2.5 years behind. Wouldn't that be quicker as we might get the GC within 3 years of applying whereas citizenship will take more than 5.5 years?

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1. If you are subject to admissibilty bars.

2. The difference between EB or FB2A and filing as a spouse of a citizen is not in quickness - it is in availbility of waivers of out of status and unauthorized presence. You can't get your green card in F2A if you are out of status over 180 days, just like you can't do it in EB. A spouse of a citizen is a whole different ball game. This is not an uncommon situation. Always helps to read the original question...

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Belle, Thank you so much for your response. Can you please help me with these questions based on your response.

1. Is there any reason why you say CP should be avoided?

As somebody who did CP himself, I actually think CP is much safer than AOS. Consulates can not deny CP, except in cases of fraud, medical issues, and missing paperwork. So, they have much less discretionary powers than CIS examiners for AOS.

The main thing where CP is bad is if the PD retrogresses.

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1. If you are subject to admissibilty bars.

2. The difference between EB or FB2A and filing as a spouse of a citizen is not in quickness - it is in availbility of waivers of out of status and unauthorized presence. You can't get your green card in F2A if you are out of status over 180 days, just like you can't do it in EB. A spouse of a citizen is a whole different ball game. This is not an uncommon situation. Always helps to read the original question...

Belle, Thanks for your response...

I thought that if we do CP, the status violations would not be looked at and only the unlawful presence will be checked. In my case, non availability of pay stubs is the status violation and there is no unlawful presence. Do you think there is a risk in doing CP even in that case?

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As somebody who did CP himself, I actually think CP is much safer than AOS. Consulates can not deny CP, except in cases of fraud, medical issues, and missing paperwork. So, they have much less discretionary powers than CIS examiners for AOS.

The main thing where CP is bad is if the PD retrogresses.

JoeF, Thank you so much for your response.

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Belle, Thanks for your response...

I thought that if we do CP, the status violations would not be looked at and only the unlawful presence will be checked. In my case, non availability of pay stubs is the status violation and there is no unlawful presence. Do you think there is a risk in doing CP even in that case?

Check with your lawyer - and get a second opinion, and proceed with causion. I think you are right, but the stakes are very-very high. It would really suck if for some reason (even if wrong reasons) the officer does decide that she is subject to admissibility bars. You can't appeal a consular decision like you can appeal I-485 denial. There is really no remedy in this case other than try to get a waiver due to extereme hardship (which you probably won't get).

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Check with your lawyer - and get a second opinion, and proceed with causion. I think you are right, but the stakes are very-very high. It would really suck if for some reason (even if wrong reasons) the officer does decide that she is subject to admissibility bars. You can't appeal a consular decision like you can appeal I-485 denial. There is really no remedy in this case other than try to get a waiver due to extereme hardship (which you probably won't get).

Thank you.

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Belle, Can you please help me with another question... My 485 was approved few days ago and my wife's 485 is still pending. Therefore she does not have her H4 status anymore. I know that she can stay legally waiting for a decision on AOS, but my question is what happens if her AOS is denied. If a decision is made in May 2012, will the days she has stayed in US in March and April waiting for the decision be counted as unlawful presence?

Since she already has some 4 months out of status, I do not want anymore addition to that which could become a problem later while doing a CP or F2A. In that case, I think it will be better if she waits in her home country till the decision is made on her AOS (she has AP). Can you please confirm if my understanding is correct?

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Belle, Can you please help me with another question... My 485 was approved few days ago and my wife's 485 is still pending. Therefore she does not have her H4 status anymore. I know that she can stay legally waiting for a decision on AOS, but my question is what happens if her AOS is denied. If a decision is made in May 2012, will the days she has stayed in US in March and April waiting for the decision be counted as unlawful presence?

Since she already has some 4 months out of status, I do not want anymore addition to that which could become a problem later while doing a CP or F2A. In that case, I think it will be better if she waits in her home country till the decision is made on her AOS (she has AP). Can you please confirm if my understanding is correct?

Your wife will start accumulating illegal presence after her denial date. I don't think there is any out of status accumulated while AOS is pending, unless there is a willful violation of the immigration law like working without EAD.

If her petition is denied, she will appeal, just like 95% of people who's petition is denied. She won't be illegally present until the final denial, and that can take a while.

Since your I-485 is approved, your wife will not lose her eligibility (i.e. the good I-140 that her and your case were based upon), thus filing in F2A is not going to be helpful because the only thing it provides is eligibility. Your wife's case may only be denied for admissibility issues (i.e. immigration violations) or excludability (from criminal to a million of other reasons). Having an F2A case will not help with either. Just my $0.02.

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Since your I-485 is approved, your wife will not lose her eligibility (i.e. the good I-140 that her and your case were based upon), thus filing in F2A is not going to be helpful because the only thing it provides is eligibility. Your wife's case may only be denied for admissibility issues (i.e. immigration violations) or excludability (from criminal to a million of other reasons). Having an F2A case will not help with either. Just my $0.02.

Belle, Thanks for your response. I am not sure whether I understood this part above.

1. Are you saying that if 485 was denied due to admissibility issues, then the F2A at consular processing will also be rejected for the same violations?

2. Before proceeding with F2A, the preferred option would be to do CP on employment based category for my wife since the status violations (not unlwawful presence) will not be looked at for CP. Does this make sense?

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Belle, Thanks for your response. I am not sure whether I understood this part above.

1. Are you saying that if 485 was denied due to admissibility issues, then the F2A at consular processing will also be rejected for the same violations?

2. Before proceeding with F2A, the preferred option would be to do CP on employment based category for my wife since the status violations (not unlwawful presence) will not be looked at for CP. Does this make sense?

Both following to join and F2A CP will result in the same thing for the same violation. The question is whether you want to do CP at all. It really does not matter which type (F2A will obviously take a lot longer).

Also, I think the question is moot until you get a final denial of I-485.

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