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Immigration Issues/Status of spouse at I485


Dear sir,

I do not believe mine is a unique case, however any advice you may be provide will be useful.

I am planning to re-marry 1st week Jan 2012. My PD is May 1, 2009 and my fiance is a non NIV US visa holder (I mean he is just has 10 year multiple entry B1). Given the current movements, if I were to become current in Feb 2012 bulletien, I may have to apply his GC through join-to-follow procedures.

1. Is it advisable to have an H4 processed before the I-485 application - I am concerned about this as it may take longer to get the H4 which will impact the I-485 application timeline.
2. If we are going through the follow-to-join procedures, and our dates regress, will the man need to wait in India until we get our GC to enter USA?
3. Alternatively, if we go ahead with H4 plus I-485 route, the man cannot leave his job in in India. Will that adversely affect our application status?

Thank you!

Dear Anjana:
You have not specified the category of PD; I presume you are EB2.  Also, I do not understand what do you mean by "re-marry".  Anyway, as put - if your fiance can-not leave job in India it is advisable to wait for PD to become current and apply under follow-to-join (He has 10 year multiple entry which may be used to travel to & fro.) (It seems the PD under EB2 is not going to regress so soon; if it does, he will not be able to join until it becomes current - he may use the multiple entry visa though.)  

Secondly, as queried:
1. H4 will not impact the I-485 timeline; only concern would be - it might take 3-5 months and by that time your PD might already become current to apply for your I-485 application. In that situation you will have to wait for your GC to apply I-824 for him - follow-to-join.
(suggested to come on B1B2 visa and apply I-485 in United States.)   
2. Yes; but again - the B1B2 might be used to travel.  
3. Your question is not clear enough.  If he can-not leave job in India how can you talk of H4 and/or I-485 for him? Anyway, If he enters the United States on H4 by Feb./Mar. 2012 (when your PD becomes current) you both can apply for I-485, I-765, and I-131 to be able to get EAD and Advance Parole together. EAD will make him eligible to work in the United States.  

I hope to have cleared your thoughts and understanding of the issue; however, if you still have any concerns please do not hesitate to consult an attorney.  Best wishes,

Ajay Singh, Esq.
AJ Singh Law
275 North Street, Newburgh, NY 12550
845-784-1500 (Tel.)
646-807-4582 (Fax)

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Questions regarding Immigration to United States, including Removal/Deportation Proceedings, Asylum; Green Card through Family (Fiance/ee Visa, Spouse, Children, Parents, Siblings); Green Card through Employment (Labor Certification - PERM, Extra Ordinary Ability - EB1, Religious/Entrepreneur - EB4/EB5); Non-Immigrant Visas - H1B, L1, F & M, J1, J1 waiver, Humanitarian relief (Cancellation of Removal, Prosecutorial Discretion, TPS, Dream Act); Hardship Waiver (I-601/212) etc., are welcome.


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LL.M - Benjamin N. Cardozo School of Law, NY. LL.B - Campus Law Center, University of Delhi, New Delhi.

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