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Guillermo J. Senmartin, Esq.
Guillermo J. Senmartin, Esq., Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 95656
Experience:  10+ years of experience in various aspects of U.S. Immigration Law.
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can spouse of main applicant file I-485 independently if

Customer Question

can spouse of main applicant file I-485 independently if priority date has come.
Submitted: 1 year ago.
Category: Immigration Law
Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.

Guillermo J. Senmartin, E :

Hello and thank you for using our service. My name isXXXXX and I am a licensed attorney and will try my best to help you. Believe me that I will try my best to give you a solution if one exists, but sometimes the law does not have a good one.

Guillermo J. Senmartin, E :

In what category are they filing?

Guillermo J. Senmartin, E :

And what country was each born in?

Customer:

my husband has job visaH1 visa . EB3 category

Customer:

pakistan

Guillermo J. Senmartin, E :

I see. Ok....

Guillermo J. Senmartin, E :

So your husband has an approved I-140 and the PD is current and you want to know if you can file an I-485 without him?

Customer:

yes

Guillermo J. Senmartin, E :

Why doesn't he file an I-485? Are you both separated?

Customer:

no. i do not know ,he is delaying it. his step son will get scholarship etc, applying for college this year. he wants to send him back to study there. fafsa consider only citizens or permanent residents

Guillermo J. Senmartin, E :

Well, the problem is that you can file it, but they will not approve it without first approving his I-485 first. So at best I believe they would put your I-485 on hold until he files his and they can adjudicate his.

Customer:

I have 1 year old twins(his sons) us citizens. can i file on their behalf, they need me here. My husband come only on weekends to visit us. our visa will expire on 2016 jan

Customer:

he is delaying to file 1-485. will he be at disadvantage? will that can be revoked? Does it has some time limit to apply?

Guillermo J. Senmartin, E :

It would be the same problem. They would not approve their I-485s until his I-485 is approved with with their I-485s or before their I-485s.

Guillermo J. Senmartin, E :

There is no disadvantage to him to delay filing the I-485 but I don't really see the advantage for him either.

Customer:

twins r us citizens. why they need I-485.?

Guillermo J. Senmartin, E :

Sorry, you said "can I file on their behalf". For some reason I thought that meant that you wanted to know if you could file an I-485 for each of them. But no, you cannot file one for your husband on their behalf.

Customer:

do i have a ground to say that my twins are too young to live without me so I need adjustment of status or green card?

Customer:

can i get green card through my twins

Guillermo J. Senmartin, E :

Unfortunately, no. The law was specifically designed not to allow that to happen. This was to prevent people from coming to the U.S., having U.S. Citizen children or getting pregnant to have U.S. Citizen children or coming to the U.S. to get someone pregnant to have U.S. Citizen children and then trying to use the children to stay. The exception is Cancellation of Removal which you could apply for if you have more than 10 years in the U.S. and your child or children would suffer EXCEPTIONAL or EXTREMELY UNUSUAL HARDSHIP and that is usually more than just emotional or economic hardship.

Customer:

my husband can file I-485 without me and do i have some right to file a plea against it? secondly, at my present position, i cannot do anything to extend my visa after 2016(when H4 visa expire)

Guillermo J. Senmartin, E :

Yes, he can file the I-485 without you and you cannot stop him from doing so, but he cannot stop you from filing an I-485 for yourself at the same time or after as he files his.

Guillermo J. Senmartin, E :

Of course, he can always divorce you before your I-485 is approved and that would cause it to be denied.

Customer:

unless we get separated? how can my child study here ?H4 convert to student visa=very difficult

Guillermo J. Senmartin, E :

You said your child is a U.S. Citizen. Your child does not need anything special to study here. If you are asking how you can convert from H-4 to F-1, yes, that is difficult. Probably impossible because they will believe you have immigrant intent, not the intent to go back home when you are done. I am truly sorry, but this is a very bad situation if your husband does not want to help you anymore. You most likely will get custody of the children and can force him to pay child support until they turn 18 even if they are outside of the U.S. with you, but I see that you will have problems for you to stay. I am truly sorry.

Customer:

when our visa expire on 2016, does his company along with my husband extend our visa too or it will also depend upon him, if he told them not extend our visa? can he wait for i-485 not to file till 2016, is it possible to delaying filinf for such long time?

Guillermo J. Senmartin, E :

If you are still legally married, you can file your own I-539 to extend your visa status as long as he is still on the same visa status and is also extending it.

Customer:

but visa is granted through his company. should i have to ask them to extend my visa or independently file? will my extension of visa application need not to go along with him for extension?

Guillermo J. Senmartin, E :

It does not have to go along with his. You just have to prove that he is still in the same legal status and that you are still married.

Customer:

what documents to prove, he is in same legal status? his h1 visa

Guillermo J. Senmartin, E :

Unfortunately, a copy of the approval of his extension (the most recent one), or if his extension is pending, probably the last 3 to 6 paycheck stubs to show he is still in legal status.

Guillermo J. Senmartin, E :

If you can get those, you can file on your own. It's just hard to get those things without him or the company helping you.

Customer:

if i got job, then is it easy for my company to change my status from H4 to H1 or not? how long does it take from filing of I-485 to have green card?

Guillermo J. Senmartin, E :

If you can qualify for an H-1B, then yes, you can change status from H-4 to H-1B. But because they are used up for this year, you will need to apply on April 1, 2014 to start working on October 1, 2014 or later. The exception is if you apply for a cap-exempt job and those are at an institution of higher education or its affiliated or related nonprofit entities or a nonprofit research organization, or a government research organization. Those are not subject to this numerical cap.

Guillermo J. Senmartin, E :

As to how long it will take for you to get a green card on your own, probably the same amount of time that it took your husband, a few years.

Customer:

my elder son who is also on H4 visa, if he got admission in college. will he can get student visa. do colleges convert H4 visa to student visa

Guillermo J. Senmartin, E :

They do, but he has to prove that he has non-immigrant intent. If not, it would be denied.

Customer:

by showing, he has relatives there/

Guillermo J. Senmartin, E :

May be a job waiting for him, an unrelinquished home, and anything else that shows strong ties to his country. It helps that no I-485 has been filed for him not for any of his family.

Customer:

why i-485 filing is considered bad. ultimately that sudent will be permanent resident

Guillermo J. Senmartin, E :

Because the I-485 shows immigrant intent and to get an F-1 you have to show clear non-immigrant intent.

Guillermo J. Senmartin, E :

And no, not all students become permanent residents.

Guillermo J. Senmartin, E :

Many do not.

Customer:

ok. thank you so much.it was great help. you are really excellent

Guillermo J. Senmartin, E :

You are very welcome. Please let me know if you have additional questions and please do not forget to rate my service to you (not the state of the law) as that is the only way that I can get credit for my assistance to you. Even after you rate the service, I can still answer additional questions for you without additional charge. If you do rate me positively, a bonus is always appreciated. If you would like to request me in the future, just go to http://www.justanswer.com/law/expert-guillermosenmartin/ and make sure you type: FOR GUILLERMO on the subject line. Thank you!

Guillermo J. Senmartin, Esq., Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 95656
Experience: 10+ years of experience in various aspects of U.S. Immigration Law.
Guillermo J. Senmartin, Esq. and 2 other Immigration Law Specialists are ready to help you

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Guillermo J. Senmartin, Esq.
Guillermo J. Senmartin, Esq.
Immigration Lawyer
95656 Satisfied Customers
10+ years of experience in various aspects of U.S. Immigration Law.