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Applying I-485 without including the spouse?

Seattle, WA |

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?

Attorney Answers 4

  1. Whether you can get a green card as his derivative depends on whether USCIS considers the marriage viable. Your statement that "he does not support the baby" implies that the marriage is not viable and that you are not living together.

    J Charles Ferrari Eng & Nishimura 213.622.2255 The statement above is general in nature and does not constitute legal advice, as not all the facts are known. You should retain an attorney to review all the facts specific to your case in order to receive advise specific to your case. The statement above does not create an attorney/client relationship. Answers on Avvo can only be general ones, as specific answers would require knowledge of all the facts. As such, they may or may not apply to the question.

  2. 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


    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.

    NYC EXPERIENCED IMMIGRATION ATTORNEYS; email:; Phone: (866) 456-­8654; Fax: 212-964-0440; Cell: 212-202-0325. The information contained in this answer is provided for informational purposes only, and should not be construed as legal advice on any subject matter.

  3. I agree with Attorney Segal.

    Law Offices of J Thomas Smith J.D., Ph.D 11500 Northwest Freeway, Suite 280 Houston, TX 77092 713-LAWYER-2 NOTE: Responses are for the education of the community at large and is not intended to be "legal advice." No attorney-client relationship is established by responses or comments.

  4. I agree you could probably adjust provided you are still married at the time. If there is a divorce, then you will not be able to do so.

    This reply is intended only as general information and does not constitute legal advice in any particular case. This reply does not create an attorney/client relationship.

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