Adding spouse as a beneficiary to an approved I-140

[nikhilsharma30]

Hi,

 

I wanted to know if there's a way to add my wife on my approved I-140 petition?

I was single when the petition was filed but got married before the approval came in!

 

I checked with my employer's attorney and was informed that there is no provision to amend an approved I-140 petition to add a spouse. I just wanted to get a second opinion from all the experts here.

 

I am aware that to get a Green Card, the spouse (and other dependents) need not necessarily be on the I-140 and can file their own I-1485s when the Priority Date becomes current. 

 

My question stems from recent proposal that may allow certain H-4s to obtain Employment Authorization. According to the latest Murthy NewsFlash, only those H-4 spouses would be eligible where the H1B worker and H-4 spouse are the beneficiaries of an approved I-140 immigrant petition; or, if they have been granted an extension of stay based upon the American Competitiveness in the Twenty-first Century Act of 2000 (AC21) (i.e. Extension of H1B status beyond 6 years based upon a pending green card case). Please note I do not fall under the latter category of AC21 extension.

 

I guess the underlying question here is - Would my wife's not being listed on my I-140 disqualify her for this newly proposed EAD? (Could be speculation at this time till the formal regulation is approved and comes into effect, with all the actual eligibility criteria!!) 

 

I also realize it would be a while before this proposal formulates into a regulation, but I wanted to use this interim time to cover all my bases and be ready with all the necessary documentation.

 

Thanks for taking time to read this and a big thanks in advance for all your help, inputs and guidance.

 

Nikhil Sharma

[ateetshah]

Spouse is added to I-485. I-140 is employer's petition.

[nikhilsharma30]

Thanks njdude, Appreciate the response. 

 

So is it safe to assume that once the EAD for H-4 becomes a regulation, my wife would not be disqualified because of not being listed on my I-140?

[rahul412]

Thanks njdude, Appreciate the response. 

 

So is it safe to assume that once the EAD for H-4 becomes a regulation, my wife would not be disqualified because of not being listed on my I-140?

It doesn't matter whether your spouse is listed on I140 or not. She should be on H4 at that time.

[JoeF]

Thanks njdude, Appreciate the response. 

 

So is it safe to assume that once the EAD for H-4 becomes a regulation, my wife would not be disqualified because of not being listed on my I-140?

First, it is not clear yet if EADs will be issued for people on H4.

And second, if it goes through, there would be the appropriate instructions.

[rahul412]

First, it is not clear yet if EADs will be issued for people on H4.

And second, if it goes through, there would be the appropriate instructions.

People will forget this after couple of days. Just like CIR, STEM EAD's etc.....

[nikhilsharma30]

Thanks rahul412 and JoeF!

[nchhabria]

You have a very valid point nikhilsharma30 and based on the rule mentioned here http://www.murthy.com/2014/05/13/proposed-rule-for-h-4-employment-authorization-published/, your spouse will NOT be eligible coz the name is not in the approved I140 as a beneficiary.

One way to include would be to change your employer and file a new I140 and include your spouse, make sure to port your PD to the new employer. You can wait till this rule is implemented and follow the guidelines then. Also talk to your attorney for options.

[nchhabria]

actually further reading the actual proposal on the federal register the statement has more clarity, please read it at this link: https://www.federalregister.gov/articles/2014/05/12/2014-10734/employment-authorization-for-certain-h-4-dependent-spouses

It says the following:
The extension would be limited to H-4 dependent spouses of principal H-1B nonimmigrants who are in the process of seeking lawful permanent resident status through employment. This population will include those H-4 dependent spouses of H-1B nonimmigrants if the H-1B nonimmigrants are either the beneficiaries of an approved Immigrant Petition for Alien Worker (Form I-140)

OR

who have been granted an extension of their authorized period of admission in the United States under the American Competitiveness in the Twenty-first Century Act of 2000 (AC21), as amended by the 21st Century Department of Justice Appropriations Authorization Act.
 

 

So nikhilsharma30 you don't have to include your spouse on the I140 as long your I140 is approved your spouse will be eligible for an EAD. Hope this rule becomes a reality soon!

 

Please ignore my earlier comments on the post as I misinterpretted Murthy's summary of the rule, my apologies!

[JoeF]

Spouse is added to I-485. I-140 is employer's petition.

Actually, a spouse is never added, not even to an I-485.

If the PD is current, the spouse can file an I-485 as dependent on his or her own.

[nikhilsharma30]

actually further reading the actual proposal on the federal register the statement has more clarity, please read it at this link: https://www.federalregister.gov/articles/2014/05/12/2014-10734/employment-authorization-for-certain-h-4-dependent-spouses

It says the following:

The extension would be limited to H-4 dependent spouses of principal H-1B nonimmigrants who are in the process of seeking lawful permanent resident status through employment. This population will include those H-4 dependent spouses of H-1B nonimmigrants if the H-1B nonimmigrants are either the beneficiaries of an approved Immigrant Petition for Alien Worker (Form I-140)

OR

who have been granted an extension of their authorized period of admission in the United States under the American Competitiveness in the Twenty-first Century Act of 2000 (AC21), as amended by the 21st Century Department of Justice Appropriations Authorization Act.

 

 

So nikhilsharma30 you don't have to include your spouse on the I140 as long your I140 is approved your spouse will be eligible for an EAD. Hope this rule becomes a reality soon!

 

Please ignore my earlier comments on the post as I misinterpretted Murthy's summary of the rule, my apologies!

 

Thanks a bunch consultant_h1b! The link you shared really clarifies things.

And.... no apologies!! Every bit of advise counts!! :)

Really appreciate your time researching this and responding to the post.