Consequences of filing 485 separately for dependents / spouse. .

[bhishma1234]

Hello

I got 140 approved (EB1). Need to file 485 for myself and dependents,,, (Spouse and son). Unfortunately to clear the medical exam for my spouse we need X-ray, which we cannot take as we are expecting a baby.
I Wish to know what is the IMPACT / RISK if I file my son's and my 485 immediately and file my wife's 485 if I file when we are ready which could be 7to 9 months from now.
thank you in advance for your advice.

[imdeng]

Since you are EB1, there isn't much issue if you wait for the baby and then ALL of your file 485? Assuming you are in H1B or something that will allow you to wait until then.
BTW - have you confirmed that the x-ray is needed. I assume it is for TB - and many times the skin test is enough for TB.

Hello

I got 140 approved (EB1). Need to file 485 for myself and dependents,,, (Spouse and son). Unfortunately to clear the medical exam for my spouse we need X-ray, which we cannot take as we are expecting a baby.
I Wish to know what is the IMPACT / RISK if I file my son's and my 485 immediately and file my wife's 485 if I file when we are ready which could be 7to 9 months from now.
thank you in advance for your advice.

[qesehmk]

Bhishma welcome to forum.

Many Indians get false TB test and have to do X ray. So that's not a problem.

As per your wife - since she is pregnant she can differ her x ray ( perhaps even be exempt i am not sure). But she can very much file 485 with you. Not a problem.

Hello

I got 140 approved (EB1). Need to file 485 for myself and dependents,,, (Spouse and son). Unfortunately to clear the medical exam for my spouse we need X-ray, which we cannot take as we are expecting a baby.
I Wish to know what is the IMPACT / RISK if I file my son's and my 485 immediately and file my wife's 485 if I file when we are ready which could be 7to 9 months from now.
thank you in advance for your advice.

[Spectator]

Hello

I got 140 approved (EB1). Need to file 485 for myself and dependents,,, (Spouse and son). Unfortunately to clear the medical exam for my spouse we need X-ray, which we cannot take as we are expecting a baby.
I Wish to know what is the IMPACT / RISK if I file my son's and my 485 immediately and file my wife's 485 if I file when we are ready which could be 7to 9 months from now.
thank you in advance for your advice.

As I read it, the change in the medical policy is actually favourable to your situation.

On timing of the I-693, it now says:

Timing of the Submission of the Medical Examination Report

The medical examination report may be submitted to USCIS:

• Concurrently with the immigration benefit application; or

• At any time after filing the immigration benefit application but prior to the adjudication of that application; if not filed concurrently with the immigration benefit application, USCIS encourages applicants to wait until USCIS requests the medical examination report before submitting it.[28]

As I read the new policy, it now perfectly acceptable to file the I-485 without an I-693 and wait until it is requested.

Your wife could include a note in her application that the Medical Exam is being deferred until after delivery.

Filing the I-485 in this way would ensure that :

a) Retrogression wouldn't stop her filing later.

b) She could receive and take advantage of an EAD and AP.

Under the old policy, the I-693 was required initial evidence (it was temporarily waived for the July 2007 filings). Without the X-ray (if it was required), the Civil Surgeon was (and still is) unable to sign the I-693.

Best to check with an immigration lawyer.

[bhishma1234]

Hello,

thanks a ton for your quick response. it helped greatly...

I have a follow up question....Is there a issue if I file mine now and wife's latter?

What happens with my wife's H4, if I get Greencard in 2 months and can't file her 485 for 7 to 10 months.?

[Spectator]

Hello,

thanks a ton for your quick response. it helped greatly...

I have a follow up question....Is there a issue if I file mine now and wife's latter?

What happens with my wife's H4, if I get Greencard in 2 months and can't file her 485 for 7 to 10 months.?

That would be a potential problem, since your wife would be out of status (if in the USA) as soon as your I-485 was approved.

As soon as she had more than 180 days combined time Out of Status/Unauthorised Employment, she would no longer be eligible to file an I-485.

As has been explained, that shouldn't be an issue, since it appears you can file her I-485 at the same time as your own, even if she has not completed the Medical Exam at that time.

Is there a reason she wouldn't file her I-485 at the same time?

[Kanmani]

As Bhishma falls under EB1- I140 already approved, his I-485 approval window would be 3 to 4 months.

In a situation he files all together, his wife may receive an RFE after 3 months + 87 days of reply time = 6 months. As per the original post, she needs atleast 7- 9 months to get ready for X-ray test. Her I-485 may get denied.

Bhishma,

1. As Qesehmk recommends, check whether she is exempted for X-ray test so that the I-693 does not carry a incomplete note. If so, File altogether immediately.

If not,

2. As Spectator says, you and your son may get approved pretty soon, leaving your wife out of status. To avoid this, I am of the opinion to go with Imdeng's recommendation. Wait and file altogether.

[Spectator]

As Bhishma falls under EB1- I140 already approved, his I-485 approval window would be 3 to 4 months.

In a situation he files all together, his wife may receive an RFE after 3 months + 87 days of reply time = 6 months. As per the original post, she needs atleast 7- 9 months to get ready for X-ray test. Her I-485 may get denied.

Bhishma,

1. As Qesehmk recommends, check whether she is exempted for X-ray test so that the I-693 does not carry a incomplete note. If so, File altogether immediately.

If not,

2. As Spectator says, you and your son may get approved pretty soon, leaving your wife out of status. To avoid this, I am of the opinion to go with Imdeng's recommendation. Wait and file altogether.

An acceptable response to an RFE for the I-693 could be that it is being deferred to a time post delivery. It should not be a reason for denial. It is part of the advice that the Civil Surgeon may give the applicant (see below). However, check with an immigration attorney.

There is no waiver from the X-ray due to pregnancy. Below is the reply I gave in a previous post in the RFE thread.

Please be aware that pregnancy does not provide a waiver from the TB test or chest X-ray, if it is needed.

The person can defer the X-ray until after delivery, but the Civil Surgeon cannot sign the I-693 until it has been completed, including any necessary follow up treatment.

Here are the Q & A from November 2009 when new guidelines were introduced regarding TB testing. The web version is here. See the questions :

Q. Are there any exceptions to the initial TB testing requirement?

Q. When is a chest x-ray required?

Q. If a chest x-ray is required, will USCIS accept Form I-693 without the full and formal chest x-ray report?

Q. Will USCIS accept a Form I-693 if the civil surgeon performed a chest x-ray without the initial TB test (either TST or IGRA)?

Q: I am pregnant (or possibly pregnant) and I have a positive initial screening result. Do I still need a chest x-ray or will USCIS accept Form I-693 without an x-ray?

Although that is now quite old, it was still in force in November 2012 as evidenced in this Q & A document for Civil Surgeons.

Q21. If a pregnant applicant needs an X-ray, should the civil surgeon give her the option to have the chest X-ray during her pregnancy or automatically defer until after she has given birth?

A21. A pregnant applicant should be given the option to have the chest X-ray during her pregnancy or defer the X-ray until after delivery. Based on the CDC’s Tuberculosis Component of Technical Instructions, if the applicant decides to undergo an X-ray during pregnancy, the possible risks of radiation to the fetus should be explained to her, and informed consent should be obtained and confirmed by having the applicant sign a consent form. If the applicant defers the radiograph until after delivery, the civil surgeon cannot sign the medical examination form until the radiograph is performed and interpreted, and treatment for Class A pulmonary TB disease, if needed, is completed. See page 12 of the TB Technical Instructions.

With the introduction of the new TB Technical Instructions, effective May 1, 2008, a previous waiver for pregnant women was rescinded http://www.cdc.gov/immigrantrefugeeh...tb-ti-memo.pdf (page 2 of 3) or http://www.cdc.gov/immigrantrefugeeh...b-ti-civil.pdf (page 11).

• A chest radiograph is required for all applicants with a tuberculin skin test (TST) reaction of 5 mm or greater of induration, including pregnant (or possibly pregnant) women. Previously, the chest radiograph could be waived for a pregnant applicant if she had a scar or other evidence of BCG vaccination and denied having any TB-related symptoms. This exception is no longer permissible. If the applicant decides to undergo a radiograph during pregnancy, the possible risks of radiation to the fetus should be explained to her and informed consent obtained, confirmed by a signed consent form. If she wishes, the applicant may defer the radiograph until after delivery, but the civil surgeon cannot sign the medical examination form until the radiograph is performed and interpreted, and treatment for Class A pulmonary TB disease, if needed, is completed.

I'm pretty sure there has been no change since then. I have looked on the CDC site and the same instructions are still shown.

The USCIS site has a page about vaccinations requirements and also references a CDC: Guidelines for Vaccinating Pregnant Women which indicates which vaccines are appropriate and which may be waived.

The option to delay filing for all applicants is available. Since the I-140 is approved under EB1, it is likely to remain Current.

[Kanmani]

USCIS 2009 Q&A on TB screening says it cannot accept an incomplete I-693.


Q: I am pregnant (or possibly pregnant) and I have a positive initial screening result. Do I still need a chest x-ray or will USCIS accept Form I-693 without an x-ray?
A. USCIS will not accept a Form I-693 if not completed in accordance with the Technical Instructions for the Examination of Aliens in the United States (Technical Instructions), including the TB Component of the Technical Instructions for the Examination of Aliens in the United States (May 2008), and its update.

If you are pregnant (or possibly pregnant) and your initial TB test reveals that you are infected with TB, you are required to undergo a chest x-ray, pursuant to the TB Component of the Technical Instructions for the Medical Examination of Aliens in the United States (May 2008) and its update.

However, you may choose to defer the chest x-ray until later in pregnancy or after delivery but the civil surgeon cannot sign the medical examination form until the radiograph is performed and interpreted, and treatment of Class A pulmonary TB disease, if needed, is completed.

Therefore, if you choose to defer the chest x-ray, the civil surgeon cannot sign the Form I-693.

Attorneys' have contradictory opinion over this issue, Many law firms recommend not to file I-485.

"I am pregnant and do not wish to receive any vaccinations. Do I still have to get them to be able to obtain permanent resident status in the United States?
A: If you are pregnant or believe you may be pregnant, USCIS may still require you to have the vaccines. While you can certainly defer any of these vaccines until later in the pregnancy or after delivery, that means you would need to also defer filing the I‐485 adjustment of status. "

http://www.klaskolaw.com/library/fil...(00856477).pdf

Rest of the attorneys' recommend the pregnant applicants' to proceed with the incomplete I-693 subsequently respond the RFE with civil surgeon's reasoning letter.

I really confused what to conclude, I take back my comments on denial to concur with Spec's view.

I still stand by my suggestion to file as a family on a later date, as Google has stories on point blank NOID cases for incomplete I-693 without an RFE.

Please Consult an Immigration Attorney.

[Spectator]

Kanmani,

I agree that this issue is not black and white.

The previous advice from attorneys related to a time when the I-693 was required evidence at the time of initial filing.

That is no longer the case, since that was changed as part of the new policy guidelines. It's that fact that leads me to believe it is not necessarily the potential problem it once was.

Ultimately, the chest X-ray is only required for a a positive TB screening result (or showing signs of infection etc).

I too have had the BCG vaccine and would almost certainly produce a false positive to a TST. Because of that, I would take the IGRA test, which does not give false positives due to BCG vaccination.

That gives the best chance of not requiring a chest X-ray at all.

I guess it comes down to an individuals risk assessment / tolerance and how comfortable they are with the prospect of introducing a substantial delay to the process. I would fully understand either decision. It's good to have the choice for a change.

I agree that the totally no risk approach is to defer filing I-485 for the whole family until after delivery.

My last on the subject in the forum.

[Kanmani]

Spec,

Yes, those advice were well before the policy change. I spent some time to find out if the applicants were sent a second RFE to complete the report after the applicant becomes safe to complete the tests. I found none.

I think I have low tolerance in risk management which is reflecting in my replies/suggestions.

Good Luck Bhishma! Please update your decisions/case history.

[bhishma1234]

Hello all,

Thanks a ton for your advise and providing insight into this mater. This has helped me a lot to get some clarity. As advised, i shall wait till I get some confimed timelines from doctor on when X-ry can be taken and accordingly file a month or 2 prior to that date.. so when RFE comes we are ready to provide X-ray etc.