Filing I-485 with a pending I-539 for H-4

[buffalo434]

Are there any side effects of filing I-485 with a pending I-539 for H-4?

Such as, would USCIS consider I-539 abandoned or decide to reject because the person filed I-485 during the processing? Or any changes regarding accrual of illegal stay? Anything at all? Or would the two petitions be considered completely independent?


A bit of a background:

• The H-4 visa is necessary as a backup plan, in case the green card application and/or I-485 gets denied.
• The H-4 I-539 was filed along with a premium processed & approved H1B (academic, this new H1B status has been in effect since about 2 weeks ago), but due to recent changes regarding biometrics, the I-539 is still pending.
• There hasn't been any accrued illegal stay so far. J-2 very recently expired (after many weeks USCIS received I-539), but J-2 has 30 days of grace period + there is a pending I-539.

[newacct]

I don't think the I-485 and I-539 will conflict with each other, as H4 is not subject to immigrant intent.

However, I am not sure from your description whether the I-539 was filed after you have already lost status, because if your J2 was based on your spouse's J1, and your spouse's change of status was approved, he/she immediately ceases to have J1 status and you immediately cease to have J2 status (there is no "grace period"; you only have J2 status when he/she has J1 status; the "grace period" means he/she remains in J1 status for 30 days after completing the program; but since he/she changed status, J1 status ends immediately when the new status starts), so if you filed I-539 after that, you would have filed late.

Also, your spouse's J1 didn't have a 2-year home residency requirement, right?

[buffalo434]

Thanks for the reply newacct, and carefully looking into the details!

That's very relieving to know. It seems there is no problem for us to go ahead with the concurrent I-140 + I-485 filing.

Sorry if it wasn't clear, the I-539 was filed together with I-129 around 6 weeks before the J-1/J-2 expired. (We also completed the biometrics appointment before the J-1/J-2 expiration). The H1B was approved very quickly in a few days, and the new status took effect starting the next day of the expiration of J-1/J-2, without any gaps. But we remained in J-1/J-2 status during that 6 weeks period.

The approval date of change of status doesn't have to coincide with the date for change of status, and indeed, on the I-129/I-539 forms, we asked USCIS to transfer us to H1B/H4 effective on the next day our J-1/J-2 expires, ensuring that we make full use of our J status, and that there are no gaps between J and H statuses.

In I-539 we also requested the H-4 to start on same start date as H1B, but of course, it's still pending. So I don't think there was any problem regarding being out of status at any point. It's an interesting point, though, I had no idea about limitation regarding the 30 days grace period of J-2! But we never really used or relied on it so far, so we should be fine in that regard. Does this sound OK to you?

Of course, we also have a waiver for the 2-year home residency requirement, which was a prerequisite for the H1B/H4 petition.

[newacct]

Thanks for the reply newacct, and carefully looking into the details!

That's very relieving to know. It seems there is no problem for us to go ahead with the concurrent I-140 + I-485 filing.

Sorry if it wasn't clear, the I-539 was filed together with I-129 around 6 weeks before the J-1/J-2 expired. (We also completed the biometrics appointment before the J-1/J-2 expiration). The H1B was approved very quickly in a few days, and the new status took effect starting the next day of the expiration of J-1/J-2, without any gaps. But we remained in J-1/J-2 status during that 6 weeks period.

The approval date of change of status doesn't have to coincide with the date for change of status, and indeed, on the I-129/I-539 forms, we asked USCIS to transfer us to H1B/H4 effective on the next day our J-1/J-2 expires, ensuring that we make full use of our J status, and that there are no gaps between J and H statuses.

In I-539 we also requested the H-4 to start on same start date as H1B, but of course, it's still pending. So I don't think there was any problem regarding being out of status at any point. It's an interesting point, though, I had no idea about limitation regarding the 30 days grace period of J-2! But we never really used or relied on it so far, so we should be fine in that regard. Does this sound OK to you?

Of course, we also have a waiver for the 2-year home residency requirement, which was a prerequisite for the H1B/H4 petition.

It sounds okay to me

[buffalo434]

It sounds okay to me

Thanks again!