I am a greencard holder married to a Filipino citizen. I filed an I130 form in February 2011 so my husband can join me in the US. I received an I797 notice of action in Sept. 2011 instructing me to file either an I485 (if I am in the US) or an I824 form (if outside the US). Can my husband travel to the US (using his valid tourist visa) to file the I485 form and stay in the country while the form is being processed? Would it be better to just file the I824 form and let him wait in the Philippines?
If you are a greencard holder and not a U.S. citizen, the petition you filed on behalf of your Filipino husband falls under F2A category, which currently has a visa backlog of about 2-3 years. Based on the October 2011 visa bulletin, visa numbers for this category are available to beneficiaries born in the Philippines with priority dates January 8, 2009 and earlier. This means your husband will have to wait until his priority date (February 2011) becomes current before he can apply for immigrant visa. If he enters the U.S. as a visitor (please note that you cannot use this visa for purposes other than temporary visit) and subsequently decides to remain in the U.S. while waiting for visa availability, he has to know that staying without authorization in the U.S. may affect his future eligibility to apply for a greencard.
Please contact an immigration lawyer to learn more about your case. There may be other options available to you to bring your husband quicker to the United States. Good luck.
These questions need to be asked to an experienced immigration attorney who can examine the facts of your case and provide a legal opinion as to the pros and cons of each option. If he requests a tourist visa he will have to disclose his intent is dual in nature because a tourist visa is for an alien to enter for a temporary basis with the intent to return when the trip ends and before the I-94 expires.
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