My husband an I are in H1B Status.But I have filed for I-485 with my husband as primary applicant and me as a dependant .Now due to domestic violence my husband and I are seprated .FRO against him.He has intiated a divorce process I received an email saying the case has been transferred to National Benefits Center. I also understand that my husband has sent a letter to USCIS informing we are in the process of getting divorced and he want to remove me as depedant from I485 application. 1.Can my husband say that he do not want me to include me as his dependant in his I485 application 2.In that case what will happen to my I-485 joint application 3.If the case gets denied will it affect my individual 485 application in future? 4.Since the case transferred to the National Benefits Center will there be an interview. 5.Can I withdraw the application?
1. Yes, your husband can say he does not want to include you, but by law you are entitled to the benefit regardless of what he says, until you are divorced.
2. Your 485 as a derivative will continue to be processed.
3. If your 485 as a derivative is denied, it will not affect your 485 filed as the principal applicant in the future.
4. The case may be transferred to the District Field Office because of his letter to them regarding your marital status.
5. Yes you can withdraw the application but there is no reason to do so, you are on a valid H1B, so let it go it's course since a denial won't be a problem for your own case in the future.
Dear Business Immigration Lawyer,
Thank you very much for your quick response.I was simply amazed at the clarity of your response.I just hav efew more questions.Please please clarify
1.If they call mefor an interview will my case be denied wihtout me given an option to withdraw it.
2.If we are called for interview and the divorce is not finalized then what would happen in the interview reg the application status
3.Please confirm that if my joint application is denied it is not going to affect my individual 485 in future
1. No, you will be given an option to withdraw, in most cases. Let them know that at the begining of the interview that you want the option.
2. Since this is an employment based adjustment, you are entitled to the derivative status regardless that the marriage is breaking down, if there is no divorce. The reasoning is that because right up to the judge signing the divorce order, you and your husband can reconcile and the immigration is not going to get into the middle of a domestic dispute. You are not required to be living together in an employment based adjustment. It is a different standard from a case where a spouse petitions you. Then you have to show the marriage is bona fide and viable. Not so for derivative status, just have to be married.
3. There is no fraud, you are not trying to obtain a benefit through misrepresentation. You are telling them you are living seperately. Unless you are divorced, there is no ground to deny you. But let's suppose they do. You are in valid nonimmigrant status. The would merely be denying the adjustment based on being ineligible under the law. That's it, it is not finding you guilty of doing anything wrong, just not eligible. As long as you remain in lawful status, you are entitle to apply for adjustment on another basis.
Thank you very much for your detailed answers.Your legal answers have clarified so many of my fears.Thanks
You are most welcome. You are not in a bad position. Your adjustment may be delayed (but I don't really think so - immigration officers don't like to get in the middle of domestic disputes - I could be wrong though). Just maintain your H1B and perhaps ultimately go it on your own.
If there is an interview, given his history of domestic violence, you should probably take a lawyer with you for protection! Also take copies of your application for restraining order and the order itself to give to the examiner. It will probably help your case!
As I wrote previously, may be wise to have an attorney enter his appearance in your case so that an they are sent notice of any action on your case in the event it is erroneiouly sent to your husband and he doesn't give it to you.
Thanks for the follow up answer.I have given my change of address with USCIS and also subscribed for email updates.Is there anything I should do in addtion so that I would get all comunication regarding my case as currently it would be difficult for me to get a immigration lawyer.Also how much it would cost me ifI have to take a lawyer to the interview
I'd also suggest sending a letter to the service center regarding change of address.
Other than having a lawyer enter their appearance, there is no sure way, and even that isn't 100%, that you will get notice of an interview date.
Often times they don't notice your change of address so having an attorney is an insurance policy.
It should be much more then $500 for them to enter appearance and then go on the interview with you. Times are tough for lawyers now, too!
Call around and get quotes for several until you find one you can afford and don't be afraid to bargain! If you catch one answering their own phone, for sure bargain. Even try today, many of them will go into the office on a holiday if they are a sole practicioner.
http://www.ailalawyer.org/ select "family" or "general" from the pull down menu.
The information provided is general in nature and should not be construed as legal advice or to create an attorney-client relationship. The information given by me is for informational/research use only and you are paying me only for such information. The information contained herewith is not legal advice. By accepting you agree you will not rely on anything I say and you will obtain appropriate legal counsel via a traditional/office consultation with an attorney licensed to practice in the jurisdiction where your legal issue arises. I strive to provide quality information, but I make no claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained in or linked herein and it's associated sites. You are irrevocably waiving any right to privacy, confidentiality and attorney-client privilege concerning the matters discussed in this public forum.
DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.
The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).