washsaint

Hi all

I applied for a GC (EB1C category) some 3 months back with I140 and I485 concurrent filing. At the time my Attorney told me that I could file I485s for the family (currently on L2 visas) any time.

Due to the cost I waited...now I'm nervous that if (dreaming I know!) my application is approved they will automatically go out of status and have to leave. Is this so?

Would you advise filing 485s now for my wife and kids as, so I've been told, we can file any time prior to my application being approved and they won't go out of status?

Any thoughts/comments would be most welcome!

meauxna

It's only a two year wait (currently) if you wait until after your own PR is approved. I'm sure they won't mind waiting outside the US for you to save up your money.
Historically that category is backlogged to 5 years wait.

sheesh, OF COURSE get them on this application, stat! You're not dreaming. If your PR is approved, their L-2s go away AND they don't get PR with you.

sangiano

I am not sure I agree with the answer on this occasion.

It seems you are thinking that the OP would have to sponsor under F2A, which isn't the case, since they are already married.

He can sponsor them as derivative beneficiaries of his EB1C as long as the Priority Date is Current.

I agree that it is best if the OP does submit the I-485 for the family before he is approved as it gives the best chance of all being approved together.

If his I-485 is approved before doing so, then the family will go out of status, since he would no longer be maintaining his L1 status. But, as long as their I-94 haven't expired, they won't accrue unlawful presence unless USCIS or an Immigration Judge tell them so earlier.

However, under 245(k), for employment based cases only, as long as they don't accumulate more than 180 days combined time out of status and unauthorised employment (since their last admission before submitting I-485), they can still adjust status within the USA. It is not a route I would have willingly undertaken.

If the OP waits until he is approved, there is likely to be a considerable gap before the family's I-485s are approved. They would not be able to leave the USA without an Advance Parole, which might take 3 months to approve.

As costs are an issue, if it not a complicated case, the OP can consider preparing and submitting the I-485s without the help of an attorney to save money.

The obvious downside is that if the I-140 is denied, so will the I-485s and it would be a lot of money down the drain. Often, to save money, people wait for the I-140 approval before submitting I-485s. I don't think the OP submitting only their own I-485 was a great move.

goldenstate31

at no time should you be out of status whilst in the U.S, if need be you need to convert to another visa, if you go out of status and your green card app wasnt approved any time you spent in the U.S would be considered an overstay. speak to your immigration attorney, to see what he/she advises.

meauxna

Thank you for the correction and the additional information. I didn't know it was common practice to let your spouse and children not be included on the application but remain in the US past the time one's main status had expired (I admit i haven't paid close attention to the out of status/illegal presence distinctions).

If the I-140 & I-485 are submitted concurrently, and the I-140 is approved, and the category is current, how exactly do you wedge the other applications in there? You dont' have to answer, that's just the part that would make me nervous.

Thanks for the additional PD and 245(k) info.

washsaint

Thanks very much for the responses - really appreciated.

Going to bite the bullet and get the family's 485s submitted within the next couple of weeks. Don't want to run the risk of them going out of status (even though it appears they have 180 days so long as their 485s are submitted before mine is approved).

Thanks for the advice - I should have just submitted them all at the same time but funds were tighter as we had only just made the move across here.

sangiano

meauxna,

I know you didn't want an answer.

It isn't "common" practice for this to happen.

Where I have seen it happen mostly, is where the primary was able to file concurrently in July 2007 and the PD has been retrogressed ever since. Often the marriage took place in the intervening years.

When they have become Current, occasionally they have received approval before the dependent I-485s have been received by USCIS.

Up until now, I have never seen a case where someone has chosen not to include their family when they had the chance to do so.

I agree with you, it would make me as nervous as hell!

If the I-140 and I-485 were concurrently filed, there is a good chance the I-485 would be approved at the same (or extremely close to the) time as the I-140.

That's where the grace period under 245(k) for Employment Based cases could be very useful.

I think it is a risky approach, not ever to be undertaken deliberately.