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Immigration Issues/Apply for i485 3 months after mine for F1 wife

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Question
QUESTION: Principal Details:
I-140 approved, EB-2, ROW, PD is 3/10/2014
Spouse Details:
Married since 3/31/2013.
Entered US on 05/2013 on H4.
Changed status from H4 to F1 on 09/2013 while in US.
Went to India on 12/2013 and got a visa stamp and returned 01/2014.
She is graduating on 05/2016.


Questions
My wife is travelling to India again on 12/8/2015 and returning on 1/5/2016.

Since we won’t have enough time to get AP, can I just file my I485 now and file my wife’s I485 later when she returns from India?  
Is it safe for her to travel? Will this cause her any trouble during port of entry?
If it is ok, how long will she have to wait before she applies for I485 once she returns form India? I understand that PD will have to be current. But is there a 30/60/90 day rule?

ANSWER: Hello,

For me, you can wait until your wife return to USA to file I-485 for both you and your wife. If you file I-485 now for both of you and if your wife goes back to India and reenters the USA on her F-1 visa, she will be considered as abandoning her I-485 application. In addition, she may have trouble reentering the USA if the immigration officer at the border discovers that she has an I-485 pending since a F-1 visa holder must prove his/her non-immigrant intent at the port of entry when coming back to the USA.

Thank you for your attention. Best wishes.  


---------- FOLLOW-UP ----------

QUESTION: Hello
Thank you the reply.
I am aware of the law above, and also have been told to wait for 60-90 days and then apply for AOS for wife once she returns, as applying immediately may look fraudulent. This will mean I cant apply together till April which I don't want to do.

Hence I wanted to know whether I can apply now for myself in November, whereas my wife travels and applies when she returns back. I have no issues waiting for 60 days for her to apply.
My concern is about port of entry in this case. If I file now just for myself, will she be able to enter safely?



Please let me know. Thanks

ANSWER: Hello,

It depends on the immigration officer at the port of entry. If he lets your wife in on her F1 visa, she will simply apply for I-485 after coming back to the U.S. However, the ability of your wife depends upon the priority dates being current. There are times when the priority dates retrogress or move backward. If this is the case, your wife will have to wait until the priority date again becomes current.

Thank you for your attention. Best wishes.  

---------- FOLLOW-UP ----------

QUESTION: The PD for EB2, ROW has been current for many months/years, so we are hoping it will be the same when she returns and willing to take that risk.

What are the chances of my info showing on her system during port of entry. How will the officer know she has an intent to immigrate later? What is the level of risk?

Or should I file mine when she returns back from India?

Also, do you recommend for her to wait for 60-90 days after returning before filing for I485?

Thank you very much

Answer
Hello,

For me, you should file I-485 when your wife is back to the United Sates.

If you file I-485 before she is back to the U.S., she should tell the truth to the immigration officer if questioned. As far as she tells the immigration officer that she will file I-485 with you and that she will leave the U.S. after her graduation if her I-485 is refused, the immigration officer may let her in. In such a case, she can file I-485 immediately after being back to the U.S.

Thank you for your attention. Best wishes.  

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