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EB2 NIW application with spouse

Hi,

My EB2 NIW application is nearly complete, and I hope to file with my spouse who works outside the US. Our wedding is set in 2 months time (November), however, he is coming over next month for our civil court marriage (October).

Is it advisable, while he is in the US (B1/B2) to submit his I-130? He wants to go through the consular processing, how long is that process?

He wants to go through the consular processing, how long is that process?

He intends on returning to the US for his MBA during the fall of 2018 (potentially with a GC), do you think we can reasonably meet that deadline I submit my I-140 and I-485 from next October 2017.

5 Responses to EB2 NIW application with spouse

  • Tigran Kalaydzhyan says:

    Hi Arnold,

    It is not advisable to file I-130 while being on short-term visa due to the 30/60/90 rule (see information by the link below). In simple terms, when your spouse enters on B1/B2 visa this declares a non-immigrant intent, while I-130 declares a conflicting immigrant intent and is seemed as a misrepresentation of the intent if filed within 60 days of the entry. What would make more sense is to file I-140 on your behalf and then, if it’s approved, to file I-485 for you and your spouse after you are married (if your spouse stays more than 60 days in the U.S.). If your spouse leaves the country, then you can proceed with consular processing, of course.

    The consular processing times vary significantly from country to country, so it is hard to generalize. I would say, in some cases, it could be faster than going with I-485, however, the paperwork is more complicated.

    Speaking of the I-140/I-485 processing times, it also fluctuates from case to case, but If you submit the documents this October, then you have a chance of meeting the deadline.

    http://www.sethimaz.com/blog/the-306090-rule-and-how-it-impacts-your-marriage-based-green-card/

  • Arnita O says:

    Hi Tigran,

    (Quick update, my name is Arnita! Autocorrect gives me problems)
    Thank you for your quick reply! So if I understand you correctly we should do the following (and just to clarify a few points):

    -My fiance arrives next month, and our wedding ceremony is in November, however, we intend to finalize our civil wedding in October

    1. Post-civil wedding, file my I-140
    2. Wait for response (2-3 months?)
    3. File I-485, including my spouse in my application package
    4. My spouse would go through the consular processing
    5. Fingers crossed, be ready for MBA by July? (Because as I understand, this process somewhat jeopardizes his F1 application)

    I must clarify, my spouse has family in the USA and has been coming here since as a child, and doesn’t want to do anything that will put him in a precarious situation. I’m not sure how it would be interpreted when filing the I-485, but he does not have any intention of changing his status from B1/B2 to PR WHILST in the US.

    Does it make sense perhaps for him to be out of the country, while I file these documents? I hope to hear back from you.

    • Tigran Kalaydzhyan says:

      Hi Arnita,

      I would not expect the I-140 for NIW to be approved within 2-3 months. I would rather assume more than 6 months (from some of my colleagues’ cases). If your fiance plans to go through the consular processing, he should not file I-485, because I-485 is for the U.S. residents applying for the adjustment of status. If you file I-140 on your behalf, then it’s fine for your fiance to apply for F1. If he applies for the green card, then he won’t be able to get F1 regardless of the outcome. Please consider the option of bringing your fiance on the spouse visa 2 months prior to filing I-485 for both of you.

  • Arnita O says:

    Dear Tigran,

    Many thanks for your feedback. Just to finalize on these points, I understand that it might be worthwhile for my spouse to apply for his F1 whilst I have filed my I-140; if and when he receives an approval on an F1 visa, he can, on return to the USA, we can then both file for an adjustment of status (also considering the 30/60/90 day rule)?

    Many thanks

    • Tigran Kalaydzhyan says:

      Hi Arnita,

      Yes, this looks like a nice plan. After marriage he will also have an option of obtaining H4 or J2 depending on your visa status.

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