Q: Green card through marriage while spouse is out of status.
Hi all. I am from India and I am on 4th year of my green card and going to become US citizen in nov 2016. I got married last month. My wife entered into US legally on F1 status but we decided not to continue with her education and spend huge money just to maintain her legal status.
So she will be not going to school and hence become out of status from next month. I am going to file for my wife's i130 in dec 2015.
My question is once I become citizen, can I apply for my wife's change of status (i485) for her green card based on my citizenship or do I have to start a new process all over again ? Because my concern is change of status can only be applied if one has current legal status. isn't it true ? while in my case my wife is already out of status by then.
Any help would be appreciated.
A:
Congratulations on getting married. I want to tell a few things which may help you get a better understanding of the process.
1. You can file for your wife's AOS now and you can upgrade that application once you become a US, you do need to file a new one all over again.
2. If you apply for AOS now, she will have to wait more than a year and half to get a green card.
3. You are not applying for any change of status, your wife will not get any status if you file I130 for her, she will have a pending AOS status if you file I485 but that wont happen until a year and half as i said before.
Contact an immigration attorney in private to help create a plan for you to go about this process. All the best.
15 years of successful immigration law experience. The answer above is only general in nature cannot be construed as legal advice, given that not enough facts are known. It is your responsibility to retain a lawyer to analyze the facts specific to your particular situation in order to give you specific advice. Specific answers will require cognizance of all pertinent facts about your case. Any answers offered are of a general nature only, and are not meant to create an attorney-client relationship.
A: For the cheapest and fastest method, I would recommend filing the I-130 now to get her "in-line". Once you naturalize, you merely send a copy of your naturalization certificate and a couple other documents to "upgrade" the petition from "Spouse of LPR" to "Spouse of USC." You are correct-you cannot file for a change of status if fallen out of status (unless you prove extraordinary circumstances beyond your control). Feel free to give me call if you need clarification.
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