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The dependent spouse is considered out of status if s/he holds nonimmigrant status that is based on that of the primary, and the primary's case is approved before the derivative spouse can file his/her own I-485 application. There is a bit of a safety net, however, under Section 245(k) of the Immigration and Nationality Act. This applies in employment-based cases and allows the filing of I-485s even if the applicant has been out of status for up to 180 days. Thus, if there is a short gap between the approval of the primary's I-485 and the filing of the dependent's I-485, the dependent's case should still be accepted and approved.
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Obviously, it is best to try to avoid this gap when the dependent is not in status. The dependent needs to have the case filed as soon as possible, once the Visa Bulletin indicates the numbers are available and before there is potential for retrogression to an earlier date or unavailability, once again. Section 245(k) can help permit the I-485 filing, if there is a short gap due to mailing delays or other logistical matters. It does not provide any status or legal permission to remain in the United States, however.
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• Thank you! 回複：這個問題已討論過, 別擔心,見內 -寶馬雕車- ♂ (0 bytes) () 03/12/2008 postreply 08:57:50

• 可是現在的身份怎麽辦? 回複：這個問題已討論過, 別擔心,見內 -寶馬雕車- ♂ (88 bytes) () 03/12/2008 postreply 09:24:45

• file 485 right away!!! Now this is your top priority. -jxshny- ♀ (0 bytes) () 03/12/2008 postreply 16:48:27