My husband is in USA on H1b visa and I am also in the H1b visa. My husbands employer sponsored GC and he applied I485 without including me and my baby. I was on H4 and he sent me and my daughter out of home and later I changed my status to h1b. we are not divorced...He does not support the baby. she is US citizen....Can I get GC as we are still married?
This issue is very settled in family immigration context - that is yes you would be able to, but in the employment based derivative situation, I would say yes under the Matter of Boromand:
United States Department of Justice
Board of Immigration Appeals
MATTER OF BOROMAND
In Section 246 Proceedings
Decided by Board August 1, 1980
(1) In the absence of evidence to support a finding of a fraudulent or sham marriage or legal dissolution of the marriage, the denial of an adjustment of status application or the subsequent rescission of an adjustment grant cannot be based solely on the nonviability of the marriage at the time of the adjustment application. See Matter of McKee , Interim Decision 2782 (BIA 1980).
(2) To the extent that Matter of Sosa , Interim Decision 2469 (BIA 1976), holds that an alien seeking admission to the United States as the spouse of a United States citizen or lawful permanent resident may be excluded solely because the marriage upon which such status is based is "nonviable", it is overruled. Matter of Kondo , Interim Decision 2781 (BIA 1980), modified.
(3) Where investigation of marital relationship conducted and evidence did not indicate a fraudulent or sham marriage, respondent's misrepresentation that he and his wife were residing together at the time of his adjustment application, did not constitute a material misrepresentation to render him ineligible as a matter of law for adjustment of status under section 245 of the Immigration and Nationality Act, 8 U.S.C. 1255. See Matter of S– and B– C– , 9 I & N Dec. 436 (BIA 1960; A.G.1961). Rescission proceedings commenced pursuant to section 246 of the Act, 8 U.S.C. 1256, terminated.
In employment based derivative situation, I would argue the same rational. I think you can try. I would suggest you consult with a competent immigration attorney.
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