Married my gf on F1 before my green card was approved. What do we need to file for her green card?

[steel_4d 3]

I've been in AOS for years, from H1B, with priority date of Jan 2007.

Married my gf in November 2012. She's been on F1 since June 2011, currently in OPT, with about a year of OPT left.

My I-485 was approved a couple of weeks ago, and I got my green card.

She wasn't added to my case before it was approved.

What's the procedure to apply for her green card? Do we just go ahead with I-485, and I-131 for AP so she can travel? Do we file her I-485 as a derivative beneficiary?

We intend to take a trip outside the country in May. Is it safer to not send in the I-485 till after the trip, in case the AP doesn't arrive in time, so she can still travel on the F1?

The more details and links you can provide, the better. We're not really experts in immigration matters.

Thanks!

[Little_My 464]

The process isn't as easy for her as it is for a foreign spouse of a US citizen. Because you are not a citizen, but "only" a greencard holder, there isn't an immediately available visa number for her in the same way there is for a spouse of a citizen.

You can file the I-130 for her, but filing the I-130 does not give her legal status in the US. This means that she can be here waiting for the I-130 processing for as long as she has a legal status, so in this situation until her OPT expires. After that, she will have to return to her home country to wait out the process there. She might be able to visit the US under a tourist status while the I-130 is pending.

Spouses of permanent residents are in the second preference A category (F2A). It seems that according to the last bulletin, In January 2013 in the F2A category, applicants whose priority date was 22 September 2010 or earlier - so the wait time for a foreign spouse of a permanent resident to get a greencard right now seems to be around 2 years and 3 months, but my understanding is that it usually hovers around 2.5-3 years from filing the I-130.

(Latest visa bulletin)

Greencard for a family member of a permanent resident (USCIS)

[Newbie608 103]

If she wasn't added to your case when it was started, there is nothing you can do now that your cases is approved. As the previous poster said, As a GC holder filing for a spouse, you will have to file I-130 first then wait until her priority date is current to get a visa number. Check the Visa bulletin board to see estimated wait time....

[hmh33 117]

I'm not convinced this is the case... I could be wrong but I think it may be possible for her to get "follow to join" derivative status since you were married before the AoS is approved. Do more research / consult an immigration attorney.

[CC90 90]

I'm not convinced this is the case... I could be wrong but I think it may be possible for her to get "follow to join" derivative status since you were married before the AoS is approved. Do more research / consult an immigration attorney.

I agree. She may have to leave the US to get an immigrant visa, but I believe that follow-to-join benefits apply.

[steel_4d 3]

I'm quite sure she falls into the "follow to join"/derivative category, the same as if she was added to my file before it was approved. I don't think she needs to leave, I'm pretty sure she can adjust from F1. Isn't that what this forum is about?

From what I read, only J1 doesn't allow derivative status.

[Darnell 8,478]

'adjusting from an F1', to holding a green card,

requires a marriage with a USCitizen.

Anything else requires a visa and a trip to 'home'.

for her to 'ride with you', adjusting from an H1-B to a green card holder,

well, she'd have to be on your original AOS paperwork, and she wasn't.

She'd have had to be part of yer H1-B, also...

[CC90 90]

I'm quite sure she falls into the "follow to join"/derivative category, the same as if she was added to my file before it was approved. I don't think she needs to leave, I'm pretty sure she can adjust from F1. Isn't that what this forum is about?

From what I read, only J1 doesn't allow derivative status.

You need to get in touch with someone that can help; this forum is not going to provide what you need.

[steel_4d 3]

You need to get in touch with someone that can help; this forum is not going to provide what you need.

Interesting answer. You know for a fact that no one has ever been in my situation before? Or somehow they're excluded from this forum? I'm looking for people with similar experiences.

[Darnell 8,478]

advanced search tool ? best utilized on a pc. Good Luck !

[CC90 90]

Interesting answer. You know for a fact that no one has ever been in my situation before? Or somehow they're excluded from this forum?

That's not what I said.

If the responses to your thread are already at completely opposite ends of the spectrum (which they are), you should know that you're not in the right place.

This is not a routine problem, and if you and your wife's future is important to you, you'd be prudent to seek expert help.

[Hypnos 6,576]

Asking at both http://immigrate2us.net and http://www.avvo.com will probably yield a trustworthy answer.

[steel_4d 3]

This is the category under which she falls:

"• Adjustment based on being the derivative spouse or child of a principal applicant:

If you are currently in the U.S. you may file your Form I-485 simultaneously with the principal applicant or you may file at any time after the principal applicant has been approved, if a visa number is available."

The only part I don't understand is "if a visa number is available". Can someone clarify what that means?

[steel_4d 3]

These are the exceptions, which she doesn't fall into:

"The following individuals / class of people are not eligible for Adjustment of Status: (Note: Exceptions may apply if you are eligible to adjust status pursuant to Section 245(i) of the Immigration & Nationality Act. For more information on Section 245(i) see the relevant portions of this website).

You entered the U.S. in transit without a visa;

You entered the U.S. as a non-immigrant crewman;

You were not admitted or paroled after being inspected by an immigration officer;

Your period of authorized stay expired before you filed for adjustment, unless you qualify as an immediate relative;

You were illegally employed in the U.S. because you did not obtain USCIS authorization to work before filing for adjustment, unless you qualify as an immediate relative;

You were admitted into the U.S. as a K-1 fiancé(e) or the K-2 child of a fiancé(e) but you or your parent did not marry the U.S. citizen petitioning for you;

You are a J-1 or J-2 exchange visitor but you did not comply with the 2 year foreign residence requirement and you have not been granted a waiver for this requirement;

You are an A non-immigrant or you are employed in a position that would allow you to obtain this status unless you file a Form I-508 and an I-566;

You are an E non-immigrant or you are employed in a position that would allow you to obtain this status unless you file a Form I-508;

You are a G non-immigrant or you are employed in a position that would allow you to obtain this status unless you file a Form I-508 and an I-566;

You were admitted into Guam as a visitor under the Guam visa waiver program;

You were admitted into the United States as a visitor under the Visa Waiver Program unless you are applying for adjustment based on immediate relative status to a U.S. citizen;

You are already a conditional permanent resident

You failed to maintain your non-immigrant status (unless the failure was due to no fault of your own, you are the immediate relative of a U.S. citizen, you are a K-1 (K-2) who married the U.S. petitioner within the 90 day period, or you are a special immigrant)."

[hmh33 117]

This is the category under which she falls:

"• Adjustment based on being the derivative spouse or child of a principal applicant:

If you are currently in the U.S. you may file your Form I-485 simultaneously with the principal applicant or you may file at any time after the principal applicant has been approved, if a visa number is available."

The only part I don't understand is "if a visa number is available". Can someone clarify what that means?

I think this article explains the "if a visa number is available": http://www.ilw.com/articles/2012,0213-Snellman.shtm

The uncertainty I have is whether your wife is automatically considered a derivative spouse simply because she was married to you before you adjusted status, or whether something had to be filed (or still has to be filed) to register that derivative status.

Edited January 31, 2013 by hmh33