Adjustment of Status / Visa abroad as i-140 spouse.

[mawshaikh]

Hi,

I have a very weird situation. I am in U.S as visitor/B2 and my entry will expire in next 4 month. I came here to visit my father who was hospitalised due to stroke and he insisted me to get married; therefore week before i married my fiance here with whom i was in relationship for more than 10 years.

Unfortunately she have NO status/green card/citizenship; she is residing here on DACA so you can understand how truly we love each other.

Fortunately labor was filed for my wife prior our marriage which recently got approved and her i-140 under 245 i life act is about to go but i am really really worried; obviously i will be added in her i-140 as spouse but confuse about applying for adjustment of status with her or to apply visa abroad.

As i mentioned that i have 4 months left on my entry so my wife lawyer is asking her to submit my i-485, EAD application etc for concurrent filing along with her documents.

Though my wife case is very strong, she is engineer but i am really scared because i dont wanna go out of status and what if my wife i-140 did not get approve or USCIS take long to deciding her i-140 & our adjustment of status.

I raise same concerns with my wife lawyer and he told its fine. According to him we gonna get our EAD in next two months and line is current so i-140 action of notice (797) will also arrive in three months. He further added that even if somehow USCIS will took long then after my entry expire i will be adjuste of my wife so there is no problem.

I am really worried because so far my travel history is great and i easily travel back and forth to see my family, further i also have one separate approved i-130 filed by my brother, which is also about to get current in next 4 years.

My separate i-130 petition is also a back door for my wife. Because if GOD forbid her i-140 dont get approve then i can adjust her status in my application later on. So i dont want any trouble for my separate petition.

Someone also told me that i can apply for advance parole but i dont believe because i marry to a nonimmigrant who technically have no status or just a DACA; so how come i can apply for advance parole on visit visa.

Someone also told me to check/select column of VISA ABROAD for spouse in part 7 of my wife i-140, so i can easily go back before my entry expire and have a counselor processing for my immigrant visa at home embassy. I discuss that with one attorney who made me more scared and advise me to adjust my status with her otherwise there will be complexities and it gonna take long at home embassy.

I honestly dont know what to do.... Please please please advise me properly..... I already consult two separate lawyers but my case is so different because i marry to a DACA that they both were unable to answer properly. i have no issues in waiting for things abroad but all i am concern about is to stay legal and not to destroy my travel history which took years to become so nice and accurate.

Looking forward to hear back soon.

Thanks....

[newacct]

You don't have to worry about USCIS taking "too long" to approve -- you are allowed to stay in the US for as long as your Adjustment of Status is pending. There is no reason for you to leave and do Consular Processing.

Any applicant for Adjustment of Status can always apply for an EAD and an Advance Parole for free (and renew them for free for as long as AOS is pending). Both you and your wife can get them as you are both applying for Adjustment of Status.

It is true that if her I-140 gets denied, then both of your I-485s will be denied and you will have to leave. You do not accrue "unlawful presence" while a timely-filed Adjustment of Status application is pending, even if it is ultimately denied, so you don't have to worry about a ban if you leave after denial. But in that case you would probably not be able to come as a visitor for a while (though as the spouse of someone residing long-term in the US, it will be hard for you to come as a visitor in any case). There will be no effect on your getting an immigrant visa later on your other petition.

One thing I am not clear on is, it seems you are saying that she currently has an approved labor certification, and she can file I-140 and I-485 (and you can also file I-485) as her priority date is current for her category. You also said that she is grandfathered under 245(i) due to being a beneficiary of a labor certification that was filed before 2001. Is the current labor certification the same as the one that was filed all those years ago? (It has been pending all these years?) Or was that a different employer who petitioned for the labor certification back then? Or maybe she was the dependent child of her parent who was the beneficiary of the labor certification from long ago?