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My family and I plan on filing our I-485 applications for United States permanent residency based on my approved Labor Certification and Immigrant Worker Petition (I-140).

I am currently working on an H1B visa with a company other than the one sponsoring my “green card” application.

My wife is not in the country right now as she had been transferred to work in the United Kingdom for a year. She holds a Work Permit visa in the U.K. and at the same time has a U.S. Business visa. She travels back and forth as the need arises and often comes to the United States for work related issues.

Q: In order for my wife to file for I-485 with me as a dependent does she have to be in the United States?

A: Yes.

Q: If she does, how long does she have to stay in the United States? Does she simply need to be here when the papers are filed, or even afterward? Can she just wait until the application is filed and leave immediately for the United Kingdom?

A: She needs to stay here at least until her I-485 is filed. In addition, an applicant should ideally be in the United States for at least 30 days after their B1/B2 entry prior to filing their I-485. Filing I-485 in less than 30 days after arrival on a B1/B2 visa can be viewed as a conflict of the applicant’s nonimmigrant vs. immigrant intent.

Q: Can my wife travel back and forth to the United States on B1/B2?

A: She should not travel on a B visa after her I-485 is filed. She should obtain an Advance Parole or H4 visa prior to traveling to the United States. Her I-485 will be deemed abandoned by the U.S. Citizenship and Immigration Services (USCIS) if she travels to the U.S. on a B1/B2 visa after filing her I-485.

Q: Is it more advantageous to file for the I-485 while on a B1/B2 or will changing to a H4 work better? This would enable my wife to go back to London and continue working there immediately after filing the I-485.

A: It really does not matter. For the most part it only makes a difference if traveling is an issue. I advise you consult with an experienced immigration attorney before making any decisions that can potentially negatively impact your ability to legally travel or remain in the United States.

James E. Root, Esq., manages an exclusive immigration law practice with two offices in L.A. and Orange counties. (888) ROOT-LAW.

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