michaelmath

I am a husband of a permanent US Resident. We are Indian Citizens. My
wife got her green card in May 1999. She did not live in United States
after getting her Green Card. She was still living in India and came to
US every year to renew her re-entry permit. In May 2002, she
permanently moved to United States. I came to United States on F-1 visa
in July-2002 to do my Masters. We got married in district court in
August-2002. In January 2004, my wife filed a visa petition for me. She
filed form I-130 for me. I got a receipt on Jan-20 2004 and when I
first checked my case status online, it said that "Your I130 IMMIGRANT
PETITION FOR RELATIVE, FIANCE(E), OR ORPHAN was received on January 20,
2004. We mailed you a receipt with information about processing. It is
taking between 540 and 570 days for us to process this kind of case. We
will mail you a decision as soon as processing is complete." Even as of
today it says the same thing. Currently, I am on a H-1B visa which
expires on 01-01-2008. My questions are: 1. When can my wife file for
her Citizenship?
Since she had her Green Card since May 1999, does she have to wait for
4 years and 1 day from May 2002 (when she permanently moved to USA) or
like everyone she has to wait for 4 years and 9 months?

2. What other forms she needs to file for me once she gets her
citizenship?

3. When will I be placed under "Change of Status" so that I can get a
temporary work permit?

4. Will I be able to get my Green Card or at least a temporary work
permit before my H-1B expires?

Folinskyinla

Hi:

Retain an experienced immigration lawyer. You need one. A GOOD immigration lawyer with a developed sense of immigration paranoia.

Consider starting your OWN independent employment based LPR procedure.

Your case is a damn good law school examination question in immigration law. It is just loaded with what lawyers call "issues" -- in lay terms, it is loaded with a lot of "land mines."

I'm not kidding on this. NOW is the time to do some preventive work.

michaelmath

What are the cavets that you see? It does seem like a simple case to me
and I have never ever been "out of status". I would really appreciate
if you could throw some light on the preventive measures that I should
take. Thanks.

Folinskyinla

Hi:

It is NOT "simple." Not at all. And why are you just looking at YOUR status?

As I said, the situation of you and your beloved is just LOADED with issues. Land mines all over the place. An internet NG is not the place to string together all possible flow charts.

DCMark

Listen to this guy he is an expert immigration attorney but NOT your attorney. Which is why he cannot answer your question directly.

One issue is that you pretty much state that your wife was not ever really eligible for her greencard. The greencard is for permanent residents, not people who live overseas and visit just to get their re-entry permit stamped.

Will this be an issue? I have no idea. Its the only obvious problem starting at me (I am not an immigration expert at all). Clearly there are a number of other issues that stand out to a real expert.

Good luck. Don't leave the USA under any circumstances.

Rete

Why not? He has never been out of status, nor does it appear that he violated any visa status by fraud, etc. He is here currently on a valid H-1B visa which has the right of travel attached to it. Just wondering why you would caution him not to travel.

DCMark

My bad then. When an attorney tells someone their case is full of mines, I would stay put. Always better to err on the side of caution.

michaelmath

As I said earlier, my wife has been residing in United States (and me
too) since May - 2002. So, I still don't understand where is the
caveat. The reason why I asked this question was because only one
person till now has said that my case is full of issues.
I would welcome any comments.

DCMark

That one person is a skilled immigration attorney. The rest of us are just like you, we went through the process (many types of visas) and share our experiences. Why you would trust our advice over an attorney is beyond me.

You just got top shelf legal advice. You can either follow it or wait for someone here (who knows nothing about your case and next to nothing about the law) to tell you what you want to hear.

Rete

I'm not an attorney but from your short post, I would think there are issues regarding your wife's residency status. She could well be proved to have abandoned that status during the first two years that she claimed residency but did not live, work, etc. in the US but in India instead. She might be asked to prove that she had not abandoned her residency in the US during those two years. If she is found to have abandoned it then she has lost her residency, blah, blah, blah. Also is the fact that you knew your wife before you came to the US. Yet, you applied for a student visa. Since you married one month after arrival in the US that can be considered fraudulent as you might be seen to have obtained the F-1 for the entry to the US and marriage and the right to reside here.

These are two issues I can see being a lay person. Imagine what an experienced immigration attorney can see.

Elvira

As a matter of interest: is there any reason why the OP could not have adjusted status in his own right, based on his H1b - provided, of course, that his employer is willing to sponsor him?

But I guess since his wife has already filed the I-130, this is now a moot point...

Rete

None, as Mr. F pointed out to me in his reply to the OP. Actually, no, the OP can still get his residency through the H-1B. However, it is to be noted that it is not quite that simple since a LC is required and company sponsorship which they might not be willing to do.

AshB

Looks like his wife got Green card with her parents, came to US after getting the GC and as many people do left US and came back within a year, she did that until 2002 and each time she was admitted to US at the entry point. Her passport will have stamps from the US entry port, so as she is admitted in 2002 without any problems she is in a legal PR. Her citizenship wait period will start from 2002 if after that she didn't leave US fro more than 180 days. He is also in legal status (he is on H1-B, employment based visa not a student visa and he didn't lie to get visa, even if he knew her before applying for visa), so his case is clean, once his I-130 is approved and if his priority date comes before 2008, he is in legal status.

Folinskyinla

Hi Rete:

Not that I disagree -- but it does depend upon whether he has a VISA or not and where he intends to travel. A fact unstated.

There are a lot of unstated facts here.

However, I've seen a lot "cleaner" cases go bad and I'm saddened when some advance work would have avoided a lot of t'souris.

Folinskyinla

Hi:

Prior successful admissions does NOT inoculate one against a future finding of abandonment prior to the previous admissions. BTW, don't conflate the 180 day part of 101(a)(13) as avoiding "abandonment."

Based upon the OP, I would be somewhat fearful. He might just be fine OR it could end up where both his wife and he end up sans LPR status, or something in between