FAQs on I-485 Adjustment of Status Derivative Spouses
Posted Nov 10, 2006
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From our clients, as well as participants in the MurthyChat and members of the MurthyForum, we receive many immigration questions. To serve the greater immigrant community, we provide responses to Frequently Asked Questions and publish them for readers of MurthyDotCom and the MurthyBulletin. Of late, we have found these Adjustment of Status questions to be on the minds of our readers.
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Question 1. I just got married, how do I add my spouse to my green card case?
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A spouse is not just "added" to a person's green card case. The spouse of a person with a pending employment-based green card case (pending at any stage) is "automatically" eligible to be a derivative beneficiary, as long as the marriage is considered valid under U.S. law. When the case reaches the adjustment-of-status stage, the spouse who is lawfully in the U.S. will need to file his/her own I-485, Application for Adjustment of Status. A spouse who is not in the U.S. may need to process for an immigrant visa at the consulate, as a derivative beneficiary.
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Question 2. Does my spouse need to be in a dependent nonimmigrant status to be a derivative beneficiary in my green card case?
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No. The ability to be a derivative beneficiary does not require being in a dependent nonimmigrant status. In many cases, for example, the spouses are both in H1B status. One spouse's employer files a green card case. When the case reaches the point where both parties can file the I-485s, the derivative spouse does not have to change status from H1B to H-4 so that the couple may file the I-485 together. The basic requirement is that the individual is a spouse and otherwise is eligible for adjustment of status. Since the derivative spouse needs to file his or her own I-485, all eligibility criteria for the adjustment of status must be met. Relevant factors include maintaining current status, as well as any past immigration violations or criminal involvement.
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Question 3. I filed my I-485 before retrogression, when my priority date was current. I am now married and my spouse is in the U.S. Can my spouse file an I-485 as part of my case? Can my spouse get an Employment Authorization Document (EAD) within a few months?
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No and no. In order to file an I-485 adjustment of status application, it is necessary to have an immigrant visa number available immediately. Derivative spouses are eligible for the same employment (EB) category and same priority date as the primary spouse. If the latest U.S. Department of State's Visa Bulletin cutoff dates, always available on MurthyDotCom, indicate that there is no longer a visa number available for the particular priority date, then it will be necessary to wait until the priority date becomes available in order to file the I-485, the employment card, and advance parole (AP). The EAD and AP are filed based upon the I-485 filing. They can be filed with the I-485 or after it is filed. Thus, if an I-485 cannot yet be filed because a priority date is not current, the EAD and AP cannot be requested.