Travelling after applying for i-485:

[nelsonwcf]

I'm trying to understand the current situation of my wife right now. Theoretically it was a simple case but the pandemic messed up everything.

I had H-1B (myself) and she had/has H-4. A couple months ago I received my green card and we are going to apply for her I-485 but the coronavirus happened, law company was closed, USCIS changed their policies and stuff just got more complicated.

I've read that if my wife leaves the country until the processing of the i-485 her status will be considered abandoned unless she has one of the other accepted VISAs to travel, like the H-4. However, I also read the once I got the green card, her H-4 is/will be cancelled, even though her H-4 shows as valid until December 2020.

She can't expect to apply for i-485 and get the EAD and AP in just two months (as happened with me) with the current state of things. What would happen if she would come back to US using her H-4? It seems strange that getting my green card which is a better/higher document than H-1B would make my wife lose the right to travel.

Would she be able to still travel with her H-4? Any mitigation situation because of the pandemic?

Thank you.

[manhattanite]

Wait a minute.

You applied for AOS from the H1B without your wife while she was on the H4 (I assume based off your H1B), and now you’ve gotten your green card but she hasn’t.

I’m confused.

Doesn’t that mean she lost her H4 status 60 days after you got your GC? Why wasn’t she listed as a derivative beneficiary?

If she lost her H4 status, I would say she has overstayed her visa. She may be accruing unlawful presence, and this may bar her from adjusting status since she’s not married to a US citizen.

[nelsonwcf]

The reason I didn't apply for the I-485 together with my wife is because she wasn't in US at the time, which is a requirement for it's application.

Not sure if she lost her H-4 or not, that's part of the question. My attorney never mentioned anything about her being here with me to be illegally accruing unlawful presence. Also, the officer at the USCIS during the interview said something to me that my wife has one year to submit her I-485 after me, which wouldn't make sense if she was accruing unlawful presence because she needs to be here to apply for it (or maybe I didn't understand correctly what the officer meant)

Yes, it could be as you said but many things are unexpected: USCIS is not functioning properly, the law firm is closed; many unprecedent things are happening because of the virus. That's the reason I'm asking this question here. As I said, the scenario was not particularly complex but the virus kind of altered the regular process.

[manhattanite]

That's fair. I'm not entirely familiar with H4 dependents when it comes to AOS---perhaps there is a grace period for her to file AOS after losing H4 status.

Regardless of whether or not she can adjust status, her being admitted back into the US on the H4 after you've adjusted to LPR is another issue. As you've said, the virus has altered a lot of things and it's hard to say without precedent. I'm not sure it's worth the risk of being separated if she's denied entry, but that's ultimately your call.

Alternatively, you could submit her AOS and request expedited AP or emergency AP, if those criteria are fulfilled.

[newacct]

I am confused. Is your wife in the US or outside the US right now? If she is not in the US, why are you talking about her filing I-485, which is only for people in the US? If she is in the US, why does she need to re-enter?

[nelsonwcf]

My wife is here in US with me since late January. She would need to re-enter in the case she travels back to our country to assist her Mom, especially now that the virus is reaching the apex in my country. We were scheduling the trip for 21 Jun - which without the pandemic and the i-485 applied in February, that date would have given her enough time to get the AP. Even if we applied now, with the H-4, that wouldn't be an issue either but now that I found her H-4 may not be valid anymore I'm looking for alternatives for her to come back.

I'm aware that the best option is to apply for i-485 and wait until we get the AP. But with the delays, not sure that is an option, so I'm looking for the less problematic solution in the case she does travel. There's always an option to apply via consular processing, but that can take a long time.

That's why I need to understand the exact state of the H-4 in this situation. Logically speaking, it doesn't seem reasonable she would be legal while I was H1-B and now that I get the superior green card she would simply lost her right to stay and travel.

[scientist2016]

H4 is out of question. You could file for her GC as your GC's beneficiary, via consular processing. You could have done the same during your petition itself viz., filed your I485 and filed for her GC via consular processing (not I485 since she was not in the US as you mentioned).

[newacct]

I'm assuming you got your green card after she entered in January (or else she shouldn't have been able to enter on H4). Why didn't she file I-485 in January after she entered? Anyway, she has been out of status since you got your green card (there is no grace period), though she is not accruing unlawful presence until her I-94 expires. She is still able to file I-485 since you guys are in an employment-based category, so under INA 245(k), she can file I-485 as long as she hasn't been out of status or working illegally for more than 180 days since her most recent admission (and it hasn't been 180 days since she went out of status yet).

She doesn't have H4 status, so if she leaves while I-485 is pending without Advance Parole, she automatically abandons her I-485. Furthermore, she cannot enter on her H4 visa anymore as she does not qualify for H4 (her spouse is not on H1b status). So yes, she would need to wait until she gets AP before she can travel. It may be possible to request that her AP application be expedited, or go in person to apply for Emergency AP, if there is an urgent humanitarian situation, but I am not sure whether she qualifies.

She could do Consular Processing instead of AOS (you would file I-824 to tell them to move your petition to NVC for Consular Processing after your AOS is approved), but that will have to wait until your AOS (I-485) is approved first, before her process can start, and so she would have to stay outside the US for a very long time.

[nelsonwcf]

Hi,
newacct
We wanted desperately to apply but the attorney my company referred me told to wait until the new changes from Trump administration would take effect. Now, I personally think that he is an unethical SOaB because he used the excuse for the new requirements of affidavit of support and self-sufficient to try to charge another US$2000 from me (which I refused to pay). One week later the virus hit and he said their office was going to close doors with the most of the business in Illinois and that I should have the documents ready when they would open again. I agree, this feels weird but nothing I could really do at the time.

I just hired a new attorney today for one hour so let me share with all the information she provided. (kinda goes contrary to what is being said here; now I'm trying to learn the reason for this difference). The attorney said that H-4 in this situation works differently because I was "promoted" to green card so even while my H1-B is indeed cancelled, my wife's H-4 will still be valid until it expires. She said that my wife can still travel with her h-4 until it expires and that my i-485 won't be cancelled as long as she is admitted with her H-4. Thinking back, this is, in fact, kind of aligned with what the USCIS interviewer officer said, that my wife "has almost a year to apply for her AOS". Assuming what the attorney says is correct, the officer statement of "almost an year" started to make sense now since I interviewed in February and my wife's visa expires late December.

The major issue she sees now is traveling and risking getting invited for the biometrics during the time of trip due to lack of flights, 14 day quarantine after arriving back and the possibility that US can close borders to my country due the virus; She also said other useful stuff not relevant to this thread.

Any ideas on why this divergence of thought (specific/different situation, recent change in regulations, etc.)?

Thank you again.

[newacct]

Hi,
newacct
We wanted desperately to apply but the attorney my company referred me told to wait until the new changes from Trump administration would take effect. Now, I personally think that he is an unethical SOaB because he used the excuse for the new requirements of affidavit of support and self-sufficient to try to charge another US$2000 from me (which I refused to pay). One week later the virus hit and he said their office was going to close doors with the most of the business in Illinois and that I should have the documents ready when they would open again. I agree, this feels weird but nothing I could really do at the time.

I just hired a new attorney today for one hour so let me share with all the information she provided. (kinda goes contrary to what is being said here; now I'm trying to learn the reason for this difference). The attorney said that H-4 in this situation works differently because I was "promoted" to green card so even while my H1-B is indeed cancelled, my wife's H-4 will still be valid until it expires. She said that my wife can still travel with her h-4 until it expires and that my i-485 won't be cancelled as long as she is admitted with her H-4. Thinking back, this is, in fact, kind of aligned with what the USCIS interviewer officer said, that my wife "has almost a year to apply for her AOS". Assuming what the attorney says is correct, the officer statement of "almost an year" started to make sense now since I interviewed in February and my wife's visa expires late December.

The major issue she sees now is traveling and risking getting invited for the biometrics during the time of trip due to lack of flights, 14 day quarantine after arriving back and the possibility that US can close borders to my country due the virus; She also said other useful stuff not relevant to this thread.

Any ideas on why this divergence of thought (specific/different situation, recent change in regulations, etc.)?

Thank you again.

Neither what this lawyer says nor what the interviewer said makes sense. When you ceased to be in H1b status, your wife ceased to be in H4 status immediately and technically deportable. Just because her I-94 is expired does not mean she is in status. She also cannot enter on her H4 visa without you in H1b status.

Derivative beneficiaries can apply to immigrate at any time after the principal beneficiary immigrates, as long as the principal beneficiary is still a permanent resident and a visa number is still available for your category and priority date. There is no time limitation. There is no "one year" thing. Derivatives can follow to join many years later. There are limitations, however, on whether someone who is out of status can do AOS, as I have explained already; and she cannot be out of status for more than 180 days and still be able to do AOS in your category.

[nelsonwcf]

I will contact her back and dig deeper in the matter. Will try to get the source for this information and share it here.

Thank you again

[nelsonwcf]

Neither what this lawyer says nor what the interviewer said makes sense. When you ceased to be in H1b status, your wife ceased to be in H4 status immediately and technically deportable. Just because her I-94 is expired does not mean she is in status. She also cannot enter on her H4 visa without you in H1b status.

Derivative beneficiaries can apply to immigrate at any time after the principal beneficiary immigrates, as long as the principal beneficiary is still a permanent resident and a visa number is still available for your category and priority date. There is no time limitation. There is no "one year" thing. Derivatives can follow to join many years later. There are limitations, however, on whether someone who is out of status can do AOS, as I have explained already; and she cannot be out of status for more than 180 days and still be able to do AOS in your category.

Hi again,

newacct Thanks, very, very much for your information. I pressed her on the matter and she couldn't provide any base for her advice; in fact, I questioned her on other matters and it raised some red flags of information contradiction. Showing her one regulation in which directly contradicted got her lost and on defensive. Unfortunately, seems like I spend money on another crook attorney. Anyway, thanks very much, sir.