I-495 Application dilemma

[stevej]

Hi,
I am currently on an O1 visa. I have been approved for EB-1 via self petition. I plan to now apply for the I-485 but here's the problem, my wife is out of status. She came to this country on a tourist visa and overstayed (before we met). I will have to disclose her information on the I-485 form. Will this be a problem? Will she get into trouble having her information on file? Even though it is just her name, date of birth and country, can immigration pick her up and start deportation proceedings? I know the only way to help her is by me applying for citizenship after 5 years but I need to apply for the I-485 first for that to happen. In the I-485 where it asks if spouse is applying together, I will check NO. But will this suffice for them to ignore her and just focus on my application? Would they be suspicious if my spouse is not applying for the green card with me?

Our lawyers have more experience with employment based immigration so they were not very helpful, aside from saying that this can or cannot be an issue. Some say wait till the political climate is better. Is that a wise solution?

This is probably a very unique situation but if anyone has any insight please do share as we would be greatly appreciative of any advice/help.

Thanks.

[MissTz1982]

Hi,
I am currently on an O1 visa. I have been approved for EB-1 via self petition. I plan to now apply for the I-485 but here's the problem, my wife is out of status. She came to this country on a tourist visa and overstayed (before we met). I will have to disclose her information on the I-485 form. Will this be a problem? Will she get into trouble having her information on file? Even though it is just her name, date of birth and country, can immigration pick her up and start deportation proceedings? I know the only way to help her is by me applying for citizenship after 5 years but I need to apply for the I-485 first for that to happen. In the I-485 where it asks if spouse is applying together, I will check NO. But will this suffice for them to ignore her and just focus on my application? Would they be suspicious if my spouse is not applying for the green card with me?

Our lawyers have more experience with employment based immigration so they were not very helpful, aside from saying that this can or cannot be an issue. Some say wait till the political climate is better. Is that a wise solution?

This is probably a very unique situation but if anyone has any insight please do share as we would be greatly appreciative of any advice/help.

Thanks.

I?d take the advice of waiting until the political environment is better. You just never know these days. I would get a lawyer who is more knowledgeable if I was you even if you just have to pay $200 consultation fee.

[newacct]

Hi,
I am currently on an O1 visa. I have been approved for EB-1 via self petition. I plan to now apply for the I-485 but here's the problem, my wife is out of status. She came to this country on a tourist visa and overstayed (before we met). I will have to disclose her information on the I-485 form. Will this be a problem? Will she get into trouble having her information on file? Even though it is just her name, date of birth and country, can immigration pick her up and start deportation proceedings? I know the only way to help her is by me applying for citizenship after 5 years but I need to apply for the I-485 first for that to happen. In the I-485 where it asks if spouse is applying together, I will check NO. But will this suffice for them to ignore her and just focus on my application? Would they be suspicious if my spouse is not applying for the green card with me?

Our lawyers have more experience with employment based immigration so they were not very helpful, aside from saying that this can or cannot be an issue. Some say wait till the political climate is better. Is that a wise solution?

This is probably a very unique situation but if anyone has any insight please do share as we would be greatly appreciative of any advice/help.

Thanks.

Has it been more than 180 days since her I-94 expired?

[stevej]

Has it been more than 180 days since her I-94 expired?

Yes it has.

- - - Updated - - -

I?d take the advice of waiting until the political environment is better. You just never know these days. I would get a lawyer who is more knowledgeable if I was you even if you just have to pay $200 consultation fee.

I do plan on consulting with an different lawyer.
I was wondering if there were any similar cases over here. Maybe someone else encountered a similar situation. Would be great to know how things panned out eventually.

[krypton9591]

Hi,
I am currently on an O1 visa. I have been approved for EB-1 via self petition. I plan to now apply for the I-485 but here's the problem, my wife is out of status. She came to this country on a tourist visa and overstayed (before we met). I will have to disclose her information on the I-485 form. Will this be a problem? Will she get into trouble having her information on file? Even though it is just her name, date of birth and country, can immigration pick her up and start deportation proceedings? I know the only way to help her is by me applying for citizenship after 5 years but I need to apply for the I-485 first for that to happen. In the I-485 where it asks if spouse is applying together, I will check NO. But will this suffice for them to ignore her and just focus on my application? Would they be suspicious if my spouse is not applying for the green card with me?

Our lawyers have more experience with employment based immigration so they were not very helpful, aside from saying that this can or cannot be an issue. Some say wait till the political climate is better. Is that a wise solution?

This is probably a very unique situation but if anyone has any insight please do share as we would be greatly appreciative of any advice/help.

Thanks.

question 1. Why didn't you apply for an O3 dependent visa instead of her coming on a tourist visa

question 2. why did she over stay instead of applying for an extension or leaving at her designated time, going home for a few months and applying for a fresh tourist visa.

if it's been over 180 days, unfortunately you're going to have an issue whether you check no or yes to whether or not you're applying together.

[newacct]

Well the I-485 form doesn't ask you about her status or where she is currently located. It only asks you about her name, date of birth, and place of birth, and the date and place of the marriage. I guess theoretically they could see that the place of marriage was in the US, and see that she was overstaying on the date of the marriage, and then they might suspect that she is still in the US, and investigate that. I don't know what the chances of that are, but I haven't heard of cases of people adjusting status causing problems for their spouses. And, all the possible avenues of relief for her require you to become a permanent resident first, so every day you delay adjusting status will push back her timeline for getting relief.

Waiting until you naturalize is not necessarily the only way for her. Once you become a permanent resident, she could also try to apply for a provisional waiver, based on hardship to you (it's hard to prove hardship, but it's worth a shot). (What you would do is file I-824 along with your I-485, for her to follow to join you by doing Consular Processing abroad as your derivative beneficiary; after your I-485 is approved, it will move to NVC for her Consular Processing to start. Once her immigrant visa fee is paid, she can file I-601A from within the US. Though again I don't know if there will be risk of exposing her to deportation if she applies for this.)

[stevej]

question 1. Why didn't you apply for an O3 dependent visa instead of her coming on a tourist visa
I didn't know her back then.
question 2. why did she over stay instead of applying for an extension or leaving at her designated time, going home for a few months and applying for a fresh tourist visa.
Like I mentioned previously, I didn't know her before when her visa expired.
if it's been over 180 days, unfortunately you're going to have an issue whether you check no or yes to whether or not you're applying together.

Thanks for the insight.

[stevej]

Well the I-485 form doesn't ask you about her status or where she is currently located. It only asks you about her name, date of birth, and place of birth, and the date and place of the marriage. I guess theoretically they could see that the place of marriage was in the US, and see that she was overstaying on the date of the marriage, and then they might suspect that she is still in the US, and investigate that. I don't know what the chances of that are, but I haven't heard of cases of people adjusting status causing problems for their spouses. And, all the possible avenues of relief for her require you to become a permanent resident first, so every day you delay adjusting status will push back her timeline for getting relief.

Waiting until you naturalize is not necessarily the only way for her. Once you become a permanent resident, she could also try to apply for a provisional waiver, based on hardship to you (it's hard to prove hardship, but it's worth a shot). (What you would do is file I-824 along with your I-485, for her to follow to join you by doing Consular Processing abroad as your derivative beneficiary; after your I-485 is approved, it will move to NVC for her Consular Processing to start. Once her immigrant visa fee is paid, she can file I-601A from within the US. Though again I don't know if there will be risk of exposing her to deportation if she applies for this.)

Thanks for the insight. Yes, I do believe its going to be hard to prove hardship as there is no medical or financial issues. So you said once I become a permanent resident she can apply for this provisional waiver but I will have to file it alongside my I-485? I don't quite understand the I-824 filing process. This will involve doing consular processing abroad?

[newacct]

Thanks for the insight. Yes, I do believe its going to be hard to prove hardship as there is no medical or financial issues. So you said once I become a permanent resident she can apply for this provisional waiver but I will have to file it alongside my I-485? I don't quite understand the I-824 filing process. This will involve doing consular processing abroad?

Since she is not eligible for AOS, she has to do Consular Processing abroad. In a case where the principal beneficiary (you) is doing AOS and the derivative beneficiary (her) is doing Consular Processing as follow-to-join, you file I-824, either with your I-485 or when your I-485 is approved. Since she will trigger a ban on leaving, she is applying for a Provisional Waiver with I-601A before she decides whether to leave. The I-601A requires that the immigrant visa fee for Consular Processing must have been paid before she can file it.

[stevej]

Since she is not eligible for AOS, she has to do Consular Processing abroad. In a case where the principal beneficiary (you) is doing AOS and the derivative beneficiary (her) is doing Consular Processing as follow-to-join, you file I-824, either with your I-485 or when your I-485 is approved. Since she will trigger a ban on leaving, she is applying for a Provisional Waiver with I-601A before she decides whether to leave. The I-601A requires that the immigrant visa fee for Consular Processing must have been paid before she can file it.

Wow, I didn't even know about the I-601A and my lawyer didn't mention anything about it. Thanks a lot for this information.

I was just looking it up and it seems to be a waiver for immediate relatives of US Citizens and Permanent residents. So we can only file I-601A after I get my I-485 approved and not concurrently with applying for the I-485 right?

[newacct]

Wow, I didn't even know about the I-601A and my lawyer didn't mention anything about it. Thanks a lot for this information.

I was just looking it up and it seems to be a waiver for immediate relatives of US Citizens and Permanent residents. So we can only file I-601A after I get my I-485 approved and not concurrently with applying for the I-485 right?

Yes, and it can only be filed after she has paid the immigrant visa fee, which can only happen after your I-485 is approved and the petition moves to NVC for consular processing (that's what the I-824 is for).

Also, the waiver will need to show "extreme hardship" to you if she can't be in the US.

[stevej]

I guess theoretically they could see that the place of marriage was in the US, and see that she was overstaying on the date of the marriage, and then they might suspect that she is still in the US, and investigate that.

Is it possible for them to see that she was overstaying by just looking at her name, place of birth and place of marriage?

[azblk]

Is it possible for them to see that she was overstaying by just looking at her name, place of birth and place of marriage?

If it is a common name, probably not. If it is an uncommon name then they could deduce it is her. It is unlikely they would come after her because she appears on your i-485. If she has been here long enough the government probably doesn't even know if she is here or not due to the poor tracking of visitors in the years past. Now if they know she overstayed are are trying to have her removed then they would search her name in all their databases and it would show up in your i-485.