Re: F-1 married to Green Card Holder

This matter is complex and you should not try to do it yourself so you should get an attorney to discuss your options. If you are located in Southern California, you can email me your contact info, so we can discuss your particular situation. There is no charge for consultation.

Re: F-1 married to Green Card Holder

Regardless of what country she is from, as a 2nd preference family-based petition, the category is backlogged, meaning she can only file the I-130, wait for her priority date to become current, then she can file her I-485, I-765 and I-131 (provided she has maintained valid status). The filing of the I-130 doesn't give her valid status, it just gets her in line. Virtually all the time, someone in her position needs to have the spouse naturalize first, then all the applications/petitions can be filed concurrently.

Re: F-1 married to Green Card Holder

If her husband is a permanent resident, she is not eligible to file for adjustment (I-485) and timing of the petition could affect her future student status. Her husband must be a U.S. citizen or the petition would have to have been filed about five years before she would be eligible to adjust status. Therefore, if husband remains a permanent resident and she wishes to remain studying and be legal in the U.S., which is required for adjusting spouses of permanent residents, filing the petition now is not a good idea. It is far better to wait until husband becomes a U.S. citizen and then file right away for her permanent residence with the petition and adjustment application at that time.

I would be happy to help you out if you contact me offline. Check me out at http://www.yardum-hunter.com, fill out a consultation request there at http://www.yardum-hunter.com/Main/Consultation.asp or email me at alice@yardum-hunter.com.

Alice M. Yardum-Hunter, Attorney at Law, Certified Specialist, Immigration & Nationality Law, State Bar of CA, Bd. of Legal Specialization

ST: 15915 Ventura Blvd., Penthouse #1, Encino, CA 91436

EM: alice@yardum-hunter.com WEB: http://www.yardum-hunter.com

A “Super Lawyer” 2004 – 2009, Los Angeles Magazine

Re: F-1 married to Green Card Holder

The husband can only file an I-130 for your sister. The I-485 CANNOT and must not be filed together with the I-130 or it will be rejected because the husband only has a green card and not a US citizen yet. The I-485 can be filed once visa numbers are available for your sister as the wife of a permanent resident. The I-130 is approved relatively fast but it does not grant her the right to file the I-485 until a visa number is available and that category is 5 years behind. She'll have to maintain lawful status in this country (continuing going to school, H-1B, E-1 visa, whatever), while waiting in the 5 years or else she'll jeopardize her chance of filing an I-485 in the future due to being out-of-status.

The way to get out of this quandary is if the husband files for citizenship and get approved in the meantime. That will reduce your sister's wait and make things easier.

Larry L. Doan, Esq.

(Straight-talk on Immigration Law at www.GuruImmigration.com )

Note: The above response is provided for legal information only and should not be construed as legal advice, nor to create an attorney-client relationship, which can only be established through payment of consideration. We do not offer free advice except for the information provided herein on LawGuru which has been screened. If follow-up advice on your specific situation is desired, we offer a paid consultation in person if you are in the Los Angeles area, or by phone or email. Please visit our website www.GuruImmigration.com for more details.