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How Can I Travel to Get Married and Bring My Wife Back if I’ve Just Filed for a Green Card?

Q. My priority date for my employment based green card is current and I am eligible to file my application to adjust my status.  After filing my application, can I travel to get married, and will my wife be able to accompany me to the United States?

A. Since you are filing your application to adjust your status (I-485), you can apply for your advance parole –AP (Travel Authorization), at the same time. You must wait for your AP to be approved prior to departing the United States. If you get married before your application (I-485) is approved, then your wife is eligible to obtain her green card as your dependent. When you return to the United States, please ensure that you enter on your H-1B/L-1 status so that your wife can enter on her H-4/L-2 status. If you return on your AP then you cannot bring your wife on H-4/L-2 visa; and your wife will need to wait outside the United States until after your green card is approved and will need to “follow to join” through the U.S Consulate in your home country.

Note: if your application (I-485) is approved before you get married, then your wife will not be able to get the dependent green card. You will need to file a separate petition for her as a spouse of green card holder, which may mean that she will have to wait for about a year or two,

I am on H-4 status and I have received an Employment Authorization Document (EAD) based on my spouse’s approved I-140 petition. I heard that the H-4 EAD rule is being challenged in court in the same way as the OPT STEM extension (Granting 17 months of EAD to F-1 STEM students). Please comment.

It is true that the same court (different judge) will be reviewing the validity of the H-4 EAD rule that went into effect in May 2015. Save Jobs USA (a group of former Edison employees who lost their jobs to H-1B visa holders) has filed a lawsuit in April 2015 seeking to stop the H-4 EAD rule, arguing that this rule should have gone through formal legislation (as opposed through regulation). 

Note: The H-4 EAD rule underwent proper notice and comment period (unlike the OPT STEM rule). Therefore, it cannot be vacated on that basis, and I am fairly optimistic that the rule will remain intact.

Immigration and business attorney Indu Liladhar-Hathi has an office in San Jose.(408) 453-5335