I-485 Approvals Possible: Impact on Spouse / Children Without Filed I-485s09 Jul 2013
The possibility of permanent residence (or “green card”) approval may become a reality for some MurthyDotCom readers. This is due to the possibility of forward movement of cutoff dates in the category for EB2 India in the U.S. Department of State (DOS) Visa Bulletin in August or September 2013. There is an important matter related to the potential approval of the application for adjustment of status to permanent residence (Form I-485), commonly referred to as the “green card.” This concerns the spouse and, to a lesser extent, minor child/ren for whom I-485s have not yet been filed, even though the primary applicant made that filing earlier.
Background: I-485s Not Filed with Principal Filing
Derivative Beneficiaries Entitled to Principal’s Priority Date
One’s spouse and minor child/ren are known as derivative beneficiaries. The derivative beneficiaries in an employment-based (EB) green card case are eligible for the same EB category and priority date as the primary beneficiary. Each eligible family member must file his/her own I-485 application (or process for an immigrant visa at the consulate), based on the primary family member’s case.
When the I-485 is Not Filed Concurrently with the Principal Applicant
Generally, if one’s spouse and/or child/ren are in the United States at the time when the primary applicant can file his/her I-485, the whole family files their I-485s simultaneously. There are many reasons, though, that such simultaneous filings do not always occur. The most common is when there is a situation in which the primary applicant is not married at the time of his/her I-485 filing. There are a great many people who filed I-485 applications while they were single and got married subsequently. The spouses of these individuals are eligible as derivatives, as long as the marriage takes place before the approval (not the filing) of the principal applicant’s I-485.
There are other reasons that a spouse and/or minor child may not have filed the I-485 at the same time as the primary. Another common situation involves family members who were traveling outside of the United States when the primary’s I-485 was filed, and were unable to file before the priority dates retrogressed. There are also spouses who delay filing the I-485 due to procedural barriers, including the J-1 two-year home return requirement, which must be resolved before the I-485 can be filed in most instances.
If PD is Current, I-485 Filing may be Allowed
Once the particular priority date (PD) of the principal applicant is “current,” the derivative beneficiaries can proceed with their I-485 filings if they are in the United States. They must meet certain procedural and status requirements to be eligible to file their I-485s, in addition to having current priority dates. Questions regarding these requirements should be discussed with a qualified immigration attorney.
Timeframes to File as I-485 Dependent
Eligibility as a derivative continues as long as the individual’s relationship as a spouse or child of the beneficiary continues. In some instances, it can even last beyond the death of the primary beneficiary. [See USCIS on Immigration Benefits After Death of Qualifying Relative (08.Oct.2012).] It does not expire. If a marriage ends through divorce, eligibility as a derivative beneficiary also ends. Children grow up and can “age out” of eligibility. But, there is no set expiration date for eligibility to process a derivative adjustment.
Most commonly, individuals want to file the I-485 as soon as they are eligible to do so. This would be the first date of the month in which one’s priority date becomes current. The visa bulletin for each month generally is valid from the first day of that particular month until the last day of the month. The visa bulletin usually is issued about 15 days in advance, which sometimes causes confusion. Visa bulletins are clearly labeled as to the month for which the cutoff dates apply. [The most recently published visa bulletin is always available via a link at the top of the MurthyDotCom Visa Bulletin page.]
Dependent Nonimmigrant Status No Longer Exists: File Quickly
Individuals who are in the United States in dependent nonimmigrant statuses, such as H-4 and L-2, absolutely need to file the I-485 at the earliest possible time. Such dependents could fall out of status if the primary applicant is approved for permanent residence. Once the primary applicant’s I-485 is approved, her/his dependents no longer hold their dependent nonimmigrant statuses, such as H-4 or L-2. There cannot be an H-4 without an H1B principal family member; hence filing the I-485 without delay, when the dates become current, becomes very important.
Example: Dependent Spouse
Ravi filed his I-485 in April 2012. He was single at that time. Later, the priority dates retrogressed and Ravi’s priority date was no longer current. In January 2013, Ravi married Priya. He holds H1B status; she holds H-4 status. If Ravi’s priority date again becomes current in September 2013, Priya can file her I-485 at any time during the month of September 2013.
Priya plans to give her lawyer the final signed forms for filing on September 1st. If on that date, however, Ravi receives an eMail notification of I-485 approval, Priya will no longer hold H-4 status. Since she has not filed her I-485, she is not lawfully in the United States, and is subject to removal (deportation). It is risky to remain in this situation.
Fortunately, Priya is still able to file her I-485, even with a brief gap in status. The law provides a “forgiveness” of up to 180 days for status violation in EB adjustment-of-status cases. However, this temporarily places Priya in a precarious situation, and makes it absolutely necessary to file her I-485 while the priority date is current. If she fails to do so, and the priority dates retrogress for many months, she then will be out of status longer, with the increased risk of removal and likely inability to file her I-485 at a later time.
Dependents May Hold Separate Nonimmigrant Status
At the Murthy Law Firm, we sometimes receive questions regarding whether a spouse must be in a dependent nonimmigrant status in order to be a dependent (derivative) in a green card case. The answer is no, the two issues are not connected. It is enough to simply be the spouse and maintain valid legal status in the United States. Therefore, a spouse who holds his/her own independent, nonimmigrant status (such as H1B) can still file as a derivative in the green card context.
Potential movement of the visa bulletin cutoff dates presents the opportunity and, in some cases, the need for family members to file I-485s promptly. The timing of these I-485 filings can determine whether or not an individual will be able to remain in the United States. Questions and concerns should be discussed with a qualified, knowledgeable immigration attorney. We at the Murthy Law Firm are always willing to help with I-485 filings and to consult with those who may have questions.
Originally published on 03.Sep.2010, this NewsBrief has been updated for MurthyDotCom readers.
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