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I've a question. I'm in USA for past 10 years in employment

Hi Wilson. I've a question...
Hi Wilson. I've a question. I'm in USA for past 10 years in employment visa and my wife also in employment visa. I've not filed derivative GC with my wife. Can my wife file a GC in category "following to join" after she gets a GC
JA: What is your official status? Do you have any pending applications or petitions with USCIS?
Customer: EB2 and I have a valid I140 and H1B
JA: Have you talked to a lawyer yet?
Customer: Yes I talked and he suggested that my wife can file a following to join after she gets her GC
JA: Anything else you want the lawyer to know before I connect you?
Customer: We were married in USA before she filed her AOS
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Answered in 20 minutes by:
9/23/2017
Guillermo J. Senmartin, Esq.
Guillermo J. Senmartin, Esq., Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 110,194
Experience: 10+ years of experience in various aspects of U.S. Immigration Law.
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Hello! My name is***** and I am a licensed attorney with more than 15 years of experience. I am here to assist you with your questions. Please understand that if I ask you for additional information, you are NOT charged again and our communications are NOT timed. So please see this as a relaxed conversation between friends. I am here to help. Also, please do NOT click on the Opt Out button because if you do, it would prevent me from communicating with you and then it could take a long time before another expert responds to you.

Please give me a few minutes to review your question and I will be right with you with an answer. Sorry for any delay. I may have to do some research and at the same time I read and type fast, but not that fast! Thank you for your patience.

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Sorry for the delay. I just ask that if it is bad news that you not shoot the messenger. Shooting the messenger is either leaving a negative rating (usually reserved for rude or unprofessional experts) or not leaving a positive rating at all.

What is your current status? I know you said employment visa, but what type of employment visa? And why wouldn't you want to adjust status when your spouse does?

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Customer reply replied 2 months ago
I'm in H1B now and due to some personal reasons I do not want to adjust status before she gets her GC.

Then yes, as long as you maintain your independent legal status in the U.S., or leave the U.S. before accruing 180 days or more of unlawful presence, then yes, you could do following to join benefits. Here is the official link:

https://www.uscis.gov/family/family-us-citizens/children/bringing-children-sons-and-daughters-live-united-states-permanent-residents

My goal is to provide you with excellent service – if you feel you have received anything less, please reply back as I am happy to address follow-up questions and there is no additional charge. Also, should you need to chat on the phone, private email or need help reviewing documentation, I am happy to do so for a small additional cost. Let me know if you are interested in these – I am happy to give you more details! If you have no further questions (at this time) please leave a positive rating for my service. I would sincerely ***** ***** You can do that by clicking on the 3rd, 4th or 5th stars or smiley faces if you see them. If you do not see any stars or smiley faces, you may have to scroll up to the top of the page or click on my name and they should come out. Also, your session does NOT close when leaving a positive rating, so you can continue to ask additional questions without additional charge. Thank you for your understanding.

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Customer reply replied 2 months ago
I understand your answer and link. My only question is, I'm within United States and won't be leaving USA. Do I still qualify for "following to Join" benefit? It is clearly written in the link that my spouse needs to file an I-824 to a US Consulate abroad. I'm within USA now. Which US Consulate will she file a I-824. That was my confusion earlier. Or she needs to file a I-824 in some US office within USA
Customer reply replied 2 months ago
Hi Guillermo
Are you there?
Judith Ludwic
Judith Ludwic, Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 29,203
Experience: 34 years as practicing immigration attorney, with non-immigrant and immigrant visa experience.
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I am a different immigration attorney and have a different answer.

Welcome to JustAnswer! I have 34 years experience as an immigration attorney and I am here to help resolve your immigration issue. Tackling these issues can sometimes get confusing. Should you need to chat on the phone or document review, I am able to do that for an additional cost. Let me know at any time during our question and answer session if you are interested.

When you are in the US and you are seeking to adjust your status to permanent resident you are not following to join. You are considered a derivative beneficiary of her approved I-140.

You do not need to file an I-864 as you are not seeking to have her petition approval sent to a consulate abroad.

As long as you maintain your H1B status you can file to adjust status based on her approved I-140 and/or I-485 as long as you and she were married at the time her adjustment of status was approved.

You would file the I-485/765/131 with the Chicago lockbox PO address.

You would send a cover letter attaching a copy of her I-140 I-797 approval notice and her fee receipt for her I-485. If her 485 has been approved then you include a copy of that approval notice.

USCIS has recently established a policy to now interview all employment based adjustments. You can file your I-485 anytime before or after her 485 approval.

It gets confusing when you use the term "follow to join" because you are not out of the country and do not intend to be out of the US to do consular processing. You are, however, her derivative beneficiary spouse because you were in a valid legal marriage at the time she had her adjustment approved.

There is not time requirement for you to file your 485 as long as you maintain your H1B status.

Since you are not seeking to have a consulate notified so you can do immigrant visa processing, no I-824 needs to be filed.

I hope that helps! Please let me know if you have any other questions. I appreciate this opportunity to help you. I do not receive a salary here at JustAnswer, and am only compensated for my time after receiving a rating. If you are very satisfied with my answer please take a moment to click on the 5 stars at the top of the page. The question thread remains open and you can ask follow-up questions.

Judith

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Customer reply replied 2 months ago
Hi JudithThanks a lot for your detailed explanation. Sorry, if I have used the word following to join. All I'm asking is, what are my options other than F2A, once she gets a green card on hand. Because for some personal reasons, she wants to get her GC in hand first and then apply for my adjustment status. Do I still qualify as a derivative or I become an F2A category?

You do NOT have to have your wife petition you as a FB2A.

As a derivative beneficiary you can file your adjustment ANYTIME - either while her 485 is pending or after it is approved.

There is no time limit as long as you remain in valid H1B status and you were married BEFORE her adjustment was approved.

If your wife wants you to wait to file your adjustment until she is approved, no problem. You would not need a FB2A petition filed on your behalf but may proceed to file your 485 here in the US.

You are considered a derivative beneficiary regardless of when you file your adjustment. There is no time constraint on when you need to file. Just keep in mind if her priority date retrogresses you have to wait until it is current again to be eligible to file the 485.

I appreciate this opportunity to help you. I do not receive a salary here at JustAnswer, and am only compensated for my time after receiving a rating. If you are very satisfied with my answer please take a moment to click on the 5 stars at the top of the page. The question thread remains open and you can ask follow-up questions.

Judith

Judith Ludwic
Judith Ludwic, Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 29,203
Experience: 34 years as practicing immigration attorney, with non-immigrant and immigrant visa experience.
Verified
Judith Ludwic and 87 other Immigration Law Specialists are ready to help you
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Customer reply replied 2 months ago
Hi Judith,Thanks a lot. So, I would wait for her Green card and then file I485/765/131 IMMEDIATELY WITHOUT ANY WAIT TIME as long as I'm married and hold a valid H1B status within USA. In case I run into any issue, I would contact you with paid service.Thanks again and have a wonderful weekend.Best Wishes
Raj

Raj

Yes you can immediately file the 485/765/131 as long as you are in status and the priority date for your wife's petition remains current and does not retrogress.

Judith

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Customer reply replied 2 months ago
Hi JudithOne last question if you don't mind. You mentioned that I need to file everything at Chicago Lockbox. Is there any address? Can I file everything on my own or I need to have the cover letter and all the petitions done through an attorney?Thanks and Regards,
Raj

Actually instructions have changed and depending on where you live you file in Dallas or Phoenix.

https://www.uscis.gov/i-485-addresses

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And be sure to verify the address for filing at the time you file because USCIS changes the filing addresses based on workload at the various service centers. It is fluid.

Judith

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Customer reply replied 2 months ago
Hi JudithThanks a lot again. My confusion was based out of the following link :https://www.uscis.gov/family/family-us-citizens/spouse/bringing-spouses-live-united-states-permanent-residentsThe link says a subtle difference between a US citizen and a permanent resident to file for her spouse. As a US citizen, 485 is current, but as a permanent resident, 485 will not be current unless visa number is ***** which is nothing but F2A.But on the contrary as you said that if I'm married before she applied, the above doesn't hold true...........I'm good and satisfied now.Thanks and Regards,
Raj

I don't understand what you are saying.

If you were married before she adjusts AND her I-140 priority date is current and the numbers did not retrogress then you file based on the approved I-140 for your spouse.

Judith

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You are filing based on your wife's approved I-140 as her derivative beneficiary spouse:

  1. A pending or approved Form I-140

    You must include a copy of the Form I-797 showing that your Form I-140 was accepted or approved.
  2. If you live in: Alabama, Arkansas, Connecticut, Delaware, District of Columbia, Florida, Georgia, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Mississippi, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Pennsylvania, Puerto Rico, Rhode Island, South Carolina, Oklahoma, Tennessee, Texas, Vermont, Virginia, U.S. Virgin Islands, or West Virginia, file at:

    USCIS Dallas Lockbox

    For U.S. Postal Service (USPS) Deliveries:

    USCIS
    PO Box 660867
    Dallas, TX 75266

    For FedEx, UPS, and DHL deliveries:

    USCIS
    Attn: AOS
    2501 S. State Hwy, 121 Business
    Suite 400
    Lewisville, TX 75067

  3. https://www.uscis.gov/i-485-addresses

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Customer reply replied 2 months ago
Hi Judith,Sorry if I have confused you. Just say yes or no to the steps below in sequence:1) My wife filed her GC application in EB1 after we both were married in USA. I did not file as her derivative at that time.
2) I'm in H1B status and a valid EB2 I140 from my own employment category
3) My wife's I140,I485 gets approved
4) My wife gets her Green card physically in hand
5) I file my I485 immediately without waiting. It'll not be an F2A category I believe. Assumption is, her EB1 category do not retrogress and I maintain my legal status within USA.All I'm saying is, after she gets her green card in hand, can I still file as a derivative?Thanks and Regards,
Raj

All I'm saying is, after she gets her green card in hand, can I still file as a derivative?

YES

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Judith Ludwic
Judith Ludwic
Judith Ludwic, Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 29,203
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Experience: 34 years as practicing immigration attorney, with non-immigrant and immigrant visa experience.

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