3

Context

  • I am an Indian citizen living in the USA on an H1b visa. I filed my EB3 green card application 7 years ago, and have a priority date of August 2014. Last October, the date for filing of AOS applications for India reached January 2015, so I took that opportunity to file my AOS, and it has been pending processing since then. The dates for final action have reached January 2014, so it is possible that in the next few months, my green card might be approved.
  • Earlier this year (after filing my AOS), I ended up meeting the woman who became my wife. She is currently working in India, with an employment contract that ends in February 2022, and was planning to move to the USA after that. Our plan was to use the H4 visa for her to enter the country, and then be added to my AOS application as a follow-to-join derivative.

Concern

  • I am concerned about the scenario where I get a green card before she is able to move here, since I will no longer be on H1b status, and so she cannot use her H4 visa to enter the country.
  • We do not want to be separated for the 2 years it will take for consular-processing, to get her a green card (based on our marriage) from India.
  • What are our options here? Is there any other way to bring her to the US sooner in those circumstances?

Notes

  • I am aware of the predictions in the latest visa bulletin, and Charles Oppenheim's comments, so I know that the dates for final action are unlikely to move forward in the future. However, these are all ultimately predictions, and I'm trying to plan for this contingency.
3

Since you guys married before you got your green card, she is eligible to immigrate as your derivative beneficiary, either at the same time as, or any time after, you become a permanent resident (as long as you are still a permanent resident). You don't need to petition her with I-130 to immigrate as the spouse of a permanent resident. In the case where the principal beneficiary immigrates via AOS in the US while the derivative beneficiary immigrates via Consular Processing abroad, you would file I-824 to move your petition to NVC after your AOS is approved. You would have to wait until your AOS is approved + the I-824 processing time + the time it takes for consular processing before your wife can be in the US, so you are right that it could take 1-2 years after you get your green card before your wife can join you.

Your wife could come to the US right now on her H4 visa and file I-485 for AOS, but then she can't leave the US before she gets Advance Parole, which could take several months, which is probably not possible with her job.

Other than that, I don't think there is anything you can do to avoid the possibility of her having to do Consular Processing. The timing of your AOS approval is not in your control (unless there is something like an interview or request for evidence that you can delay).

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.