thandan
03-15 03:29 PM
Background:
My wife and I are currently working on EADs obtained through my previous employer filing for my green card (eb3 India, pri date: dec 2005), my wife is a dependant on this greencard petition. We last re-entered US using our AP. Two years ago, more than six months after my I-140 got approved, I changed my employer (to a similar position in the IT field itself) and my new (and current) employer filed for AC-21. They have also obtained a I-797 for me as a backup which I have used. Also prior to getting my EAD, my wife worked on an H1 visa for a year and then we got EAD, she has been working on that ever since. Our EAD was recently submitted for renewal and will be valid for the next two years.
I got accepted into a fulltime MBA program in the US, which I am planning to attend. This would mean that I quit my current job and after the two years in MBA I will be joining a different employer in a different field (ie: I will be moving out of IT into something like finance). I am assuming transition to F1 is out of question since I have shown immigration intent
Questions:
1) Will it be legal for me to go fulltime to school on an AOS pending status?
2) Will I have trouble, re-entering the US on an AP if I travel overseas during the time I am enrolled in school?
3) Can I use this EAD card to go for an internship between my first and second year (the job will not be IT)?
4) Can I use this EAD card to work fulltime after MBA graduation, provided it is still valid for a few more months (the job will not be IT)?
5) If my post-MBA employer files for a greencard for me in the new position which is different from IT, will I be able to use my old priority date of Dec 2005?
6) To mitigate risk, my wife is planning to go into H1 so that I can get an H4 if going to school on EAD doesn't work. Is this strategy to use H1 during school time (and travel overseas and re-enter using H4) and use EAD while internship safe?
7) If my wife cannot find a H1 job, can she work on her EAD while I am also using EAD to go to school
8) I am assuming that for any EAD based status to work, I need to have a future job offer in the same category. My current employer will not do that.I can get a future job offer from a small IT consulting firm in the same IT field for which my greencard application was filed for. Will that be good enough to keep my EAD alive while in school?
Thanks SO much for answering. I have this wonderful opportunity in front of me and I really hope immigration will not be a road block to achieve my dreams.
My wife and I are currently working on EADs obtained through my previous employer filing for my green card (eb3 India, pri date: dec 2005), my wife is a dependant on this greencard petition. We last re-entered US using our AP. Two years ago, more than six months after my I-140 got approved, I changed my employer (to a similar position in the IT field itself) and my new (and current) employer filed for AC-21. They have also obtained a I-797 for me as a backup which I have used. Also prior to getting my EAD, my wife worked on an H1 visa for a year and then we got EAD, she has been working on that ever since. Our EAD was recently submitted for renewal and will be valid for the next two years.
I got accepted into a fulltime MBA program in the US, which I am planning to attend. This would mean that I quit my current job and after the two years in MBA I will be joining a different employer in a different field (ie: I will be moving out of IT into something like finance). I am assuming transition to F1 is out of question since I have shown immigration intent
Questions:
1) Will it be legal for me to go fulltime to school on an AOS pending status?
2) Will I have trouble, re-entering the US on an AP if I travel overseas during the time I am enrolled in school?
3) Can I use this EAD card to go for an internship between my first and second year (the job will not be IT)?
4) Can I use this EAD card to work fulltime after MBA graduation, provided it is still valid for a few more months (the job will not be IT)?
5) If my post-MBA employer files for a greencard for me in the new position which is different from IT, will I be able to use my old priority date of Dec 2005?
6) To mitigate risk, my wife is planning to go into H1 so that I can get an H4 if going to school on EAD doesn't work. Is this strategy to use H1 during school time (and travel overseas and re-enter using H4) and use EAD while internship safe?
7) If my wife cannot find a H1 job, can she work on her EAD while I am also using EAD to go to school
8) I am assuming that for any EAD based status to work, I need to have a future job offer in the same category. My current employer will not do that.I can get a future job offer from a small IT consulting firm in the same IT field for which my greencard application was filed for. Will that be good enough to keep my EAD alive while in school?
Thanks SO much for answering. I have this wonderful opportunity in front of me and I really hope immigration will not be a road block to achieve my dreams.
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mrdelhiite
08-07 09:01 AM
I'm afraid I can't help you with your application but Congrats! on getting married, i.e... :-)
Thank you Sir :-)
Also anyone, any replies for my questions please?
Thanks
-M
Thank you Sir :-)
Also anyone, any replies for my questions please?
Thanks
-M
ram_ram
06-08 02:16 PM
Not possible. You can carry your PD once the 140(based on the labor that has the PD) is approved. Not the other way..
2011 miranda lambert kerosene
rc0878
09-23 10:35 AM
I think as far it does not say unknown, we should be good....but still we should atleast discuss this wit our respective attorneys and post our findings in here.
BTW, mine is blank also.
To answer your question the Priority date column is NULL ( i mean blank) for most of us in 485 Receipt Notice.
But the "Section : " is showing UNKNOWN for some of us and showing something else for others...
I'm wondering if that could be an issue - shall we call USCIS to fix this ?
BTW, mine is blank also.
To answer your question the Priority date column is NULL ( i mean blank) for most of us in 485 Receipt Notice.
But the "Section : " is showing UNKNOWN for some of us and showing something else for others...
I'm wondering if that could be an issue - shall we call USCIS to fix this ?
more...
kaisersose
05-22 12:01 PM
I think it would be best if they allow us to apply for 485 regardless of priority date once 140 is approved .
I think the chances of that happening are very slim.
The general opinion is, EAD + AP is really not very different from the green card, especially after the introduction of AC21. This is why there is a "qualifying factor" for 485 applications - the PD should be current to just get into the queue.
Allowing 485 applications when PDs are not current is dangerously close in effect to removing the GC Quota and for this reason, it is unlikely to happen.
I think the chances of that happening are very slim.
The general opinion is, EAD + AP is really not very different from the green card, especially after the introduction of AC21. This is why there is a "qualifying factor" for 485 applications - the PD should be current to just get into the queue.
Allowing 485 applications when PDs are not current is dangerously close in effect to removing the GC Quota and for this reason, it is unlikely to happen.
GCAmigo
01-02 03:48 PM
So I was lucky as I am blissfully ignorant of this rule up until now.. may be my next visit would be with an AP.. just dreaming.. I went to the Chennai Consulate though...
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ssharma
04-27 01:36 PM
Your question has been answered at www.immigration-law.com ( advanced Q&A section). I am copy pasting :
Q-74 (04-15-2006): I had a pending RIR (EB-3) labor certification with priority date of October 2004. In November 2005, I filed PERM (EB-2) which was approved in February 2006. I filed I-140 (EB-2) right away. Now, my RIR was approved. I plan to file another I-140 based on RIR (EB-3). Can I carry over the priority date of October 2004 to EB-2? What should I do to carry over the October 2004 priority date?
A-74: The immigration regulation provides that when an alien has multiple "approved" I-140 petitions with different classifications, the alien can use the earliest priority date. This carry-over of the priority date is available regardless of difference in the occupational classifications, preference categories or employers. Unlike common misunderstanding, one cannot seek amendment of the approved I-140 petition to change the priority of a given petition. In your case, once your EB-2 I-140 petition is approved and the visa cut-off date for EB-2 for your country moves to October 2004, even if your EB-2 priority date is November 2005, you can file I-485/I-765/I-131. In filing I-485, you should attach EB-2 I-140 approval notice (original) as the underlying I-140 petition and submit a photocopy of the approved EB-3 I-140 approval notice as an evidence to prove the priority date of October 2004. Thus, EB-3 approval notice serves the sole purpose of proof of the priority date and nothing else. Once EB-3 approval notice is attached, the agency will pull out the EB-3 proceeding file to determine whether the EB-3 petition has been revoked for fraud or error. Unless such revocation is detected, the agency will keep processing your I-485, I-765, and I-131 based on the approved EB-2 I-140 petition and using the priority date of October 2004 for the purpose of determining availability of a visa number to approve I-485. This priority date transfer should not be confused with the rule of transfer of pending I-485 from one approved I-140 petition to another approved I-140 petition. Soon, the popular substitution of labor certification is expected to be eliminated, which provided a valuable means to pick up earlier priority dates. In its place, it is likely that more and more people may file multiple petitions with the same or different employers and for same or different occupations in different preference categories to take advantage of the current rule of transferability of earliest priority date among different classification of the approved I-140 petitions.
Ref: http://www.immigrationportal.com/archive/index.php/t-210170.html
Q-74 (04-15-2006): I had a pending RIR (EB-3) labor certification with priority date of October 2004. In November 2005, I filed PERM (EB-2) which was approved in February 2006. I filed I-140 (EB-2) right away. Now, my RIR was approved. I plan to file another I-140 based on RIR (EB-3). Can I carry over the priority date of October 2004 to EB-2? What should I do to carry over the October 2004 priority date?
A-74: The immigration regulation provides that when an alien has multiple "approved" I-140 petitions with different classifications, the alien can use the earliest priority date. This carry-over of the priority date is available regardless of difference in the occupational classifications, preference categories or employers. Unlike common misunderstanding, one cannot seek amendment of the approved I-140 petition to change the priority of a given petition. In your case, once your EB-2 I-140 petition is approved and the visa cut-off date for EB-2 for your country moves to October 2004, even if your EB-2 priority date is November 2005, you can file I-485/I-765/I-131. In filing I-485, you should attach EB-2 I-140 approval notice (original) as the underlying I-140 petition and submit a photocopy of the approved EB-3 I-140 approval notice as an evidence to prove the priority date of October 2004. Thus, EB-3 approval notice serves the sole purpose of proof of the priority date and nothing else. Once EB-3 approval notice is attached, the agency will pull out the EB-3 proceeding file to determine whether the EB-3 petition has been revoked for fraud or error. Unless such revocation is detected, the agency will keep processing your I-485, I-765, and I-131 based on the approved EB-2 I-140 petition and using the priority date of October 2004 for the purpose of determining availability of a visa number to approve I-485. This priority date transfer should not be confused with the rule of transfer of pending I-485 from one approved I-140 petition to another approved I-140 petition. Soon, the popular substitution of labor certification is expected to be eliminated, which provided a valuable means to pick up earlier priority dates. In its place, it is likely that more and more people may file multiple petitions with the same or different employers and for same or different occupations in different preference categories to take advantage of the current rule of transferability of earliest priority date among different classification of the approved I-140 petitions.
Ref: http://www.immigrationportal.com/archive/index.php/t-210170.html
2010 “Kerosene” Miranda Lambert
obviously
08-04 11:45 AM
Thanks for the 2 quick responses... albeit, opposite in recommendation :)
1. No need to file new I-485
- Has anyone done this?
- Any risks that we should think about?
2. File new I-485
- Has anyone done this?
- Apart from the additional cost and document preparation time, is there any other downside?
Funny thing is before this happened, I ran into a lot of threads suggesting interfiling was easy. Now that it is at the doorstep, there are quite a few questions and some confusion. I am thinking of getting a 20 min appt with the M law firm.
Appreciate any responses or assistance!!!!
Cheers!
I found the following info from Ron G's website, not sure that most of it applies in this case... since both I-140 have been approved and the later one under EB2 does reference the EB3 priority date.
When an I-140 is approved, your priority date is perfected. If the labor substitution I-140 has been approved, then you own that priority date forever. If you have to file the new I-140 before the old one is approved, you can later show the CIS the two priority dates (from the petition approval notices) and pick the better preference category and earlier priority date - even though they may be from different petitions. In this case, "later" means after the I-140 with the earlier priority date is approved. All you need to do is write to the CIS and enclose copies of the relevant approval notices and the I-485 receipt notice. What you should do is make sure that they consolidate both I-140 petitions into the same file. You don't need to file a new I-485, all you need to do in interfile your second I-140.
You should make a copy of the approval notice for the first I-140, a copy of the receipt notice for the second I-140, and the write a letter to the CIS, asking them to give your second I-140 the priority date established by the first. You can cite the regulatory authority found HERE. (Refer text below) Send it to the correspondence address shown in the lower left portion of the receipt notice.
You can upgrade your preference classification while staying with the same employer, but you will need a new job. Attempting to use the same job with different minimum qualifications will call into question the legitimacy of the original labor certification. If the second I-140 is denied, it will have no effect on the first. There shouldn't be any difficulty porting in an LC substitution situation.
The CIS regulations at 8 CFR 204.5(e) provides for the retention of a previously established priority date under the circumstances described below:
(e) Retention of section 203(b)(1), (2), or (3) priority date. --
A petition approved on behalf of an alien under sections 203(b)(1), (2), or (3) of the Act accords the alien the priority date of the approved petition for any subsequently filed petition for any classification under sections 203(b)(1), (2), or (3) of the Act for which the alien may qualify. In the event that the alien is the beneficiary of multiple petitions under sections 203(b)(1), (2), or (3) of the Act, the alien shall be entitled to the earliest priority date. A petition revoked under sections 204(e) or 205 of the Act will not confer a priority date, nor will any priority date be established as a result of a denied petition. A priority date is not transferable to another alien.
1. No need to file new I-485
- Has anyone done this?
- Any risks that we should think about?
2. File new I-485
- Has anyone done this?
- Apart from the additional cost and document preparation time, is there any other downside?
Funny thing is before this happened, I ran into a lot of threads suggesting interfiling was easy. Now that it is at the doorstep, there are quite a few questions and some confusion. I am thinking of getting a 20 min appt with the M law firm.
Appreciate any responses or assistance!!!!
Cheers!
I found the following info from Ron G's website, not sure that most of it applies in this case... since both I-140 have been approved and the later one under EB2 does reference the EB3 priority date.
When an I-140 is approved, your priority date is perfected. If the labor substitution I-140 has been approved, then you own that priority date forever. If you have to file the new I-140 before the old one is approved, you can later show the CIS the two priority dates (from the petition approval notices) and pick the better preference category and earlier priority date - even though they may be from different petitions. In this case, "later" means after the I-140 with the earlier priority date is approved. All you need to do is write to the CIS and enclose copies of the relevant approval notices and the I-485 receipt notice. What you should do is make sure that they consolidate both I-140 petitions into the same file. You don't need to file a new I-485, all you need to do in interfile your second I-140.
You should make a copy of the approval notice for the first I-140, a copy of the receipt notice for the second I-140, and the write a letter to the CIS, asking them to give your second I-140 the priority date established by the first. You can cite the regulatory authority found HERE. (Refer text below) Send it to the correspondence address shown in the lower left portion of the receipt notice.
You can upgrade your preference classification while staying with the same employer, but you will need a new job. Attempting to use the same job with different minimum qualifications will call into question the legitimacy of the original labor certification. If the second I-140 is denied, it will have no effect on the first. There shouldn't be any difficulty porting in an LC substitution situation.
The CIS regulations at 8 CFR 204.5(e) provides for the retention of a previously established priority date under the circumstances described below:
(e) Retention of section 203(b)(1), (2), or (3) priority date. --
A petition approved on behalf of an alien under sections 203(b)(1), (2), or (3) of the Act accords the alien the priority date of the approved petition for any subsequently filed petition for any classification under sections 203(b)(1), (2), or (3) of the Act for which the alien may qualify. In the event that the alien is the beneficiary of multiple petitions under sections 203(b)(1), (2), or (3) of the Act, the alien shall be entitled to the earliest priority date. A petition revoked under sections 204(e) or 205 of the Act will not confer a priority date, nor will any priority date be established as a result of a denied petition. A priority date is not transferable to another alien.
more...
alterego
04-12 08:39 PM
Thanks all. I called my lawyer, and she mentioned that there have been specific cases of the Neb Service Center rejecting I485 applications for internists while they are doing fellowships. I guess my plan would be to find a 'full time' position working a couple of nights a week in the same city where I am working as a fellow, and use that as proof of ongoing full time internist work.
I am not sure if they need just a letter, or a w2s also. I guess 'full time' is a very arbitrary word, and can be applied to more than 28-32 hrs a week, which is very easily doable.
Full time would be the standard definition of 40 hrs per week. It is clearly defined in the J1 waiver regulations for physicians and will likely be extended to the labor based applications as well since adjudicators are very familiar with the J1 waiver and NIW physician cases. Ultimately you have to decide whether the risk is worth it. W-2s as well as paystubs, as well as employers letters attesting to the scope of, and the full time nature of the work are often requested.
I am not sure if they need just a letter, or a w2s also. I guess 'full time' is a very arbitrary word, and can be applied to more than 28-32 hrs a week, which is very easily doable.
Full time would be the standard definition of 40 hrs per week. It is clearly defined in the J1 waiver regulations for physicians and will likely be extended to the labor based applications as well since adjudicators are very familiar with the J1 waiver and NIW physician cases. Ultimately you have to decide whether the risk is worth it. W-2s as well as paystubs, as well as employers letters attesting to the scope of, and the full time nature of the work are often requested.
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abalu400
07-19 08:34 PM
Friends,
In my case, in the past year or so, I had one year when I was partially on the bench and so my W2 does not show enough amount, definitely lower than the LCA petition. So, I am in this position. personally, I would like to file next year so that this bad year is at least a year out....and maybe I can get away with filing just one W2.....
What are your thoughts?
In my case, in the past year or so, I had one year when I was partially on the bench and so my W2 does not show enough amount, definitely lower than the LCA petition. So, I am in this position. personally, I would like to file next year so that this bad year is at least a year out....and maybe I can get away with filing just one W2.....
What are your thoughts?
more...
clockwork
05-11 07:42 AM
Hello All,
I apologize, if it caused any issue due to posting this message on this thread ( I did not realize the severity of thread name). But, what the heck is poorslumdog response? This is stupidity. If you dont have answer, keep the f**k with you.
I apologize, if it caused any issue due to posting this message on this thread ( I did not realize the severity of thread name). But, what the heck is poorslumdog response? This is stupidity. If you dont have answer, keep the f**k with you.
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roseball
02-20 04:14 PM
Thanks for the replies, I appreciate the time.
When I look back at the timelines, when we applied for the 485s, we thought he was in status but afterwards, we realized he might not have been. Since then, we have renewed the H4 twice, and each time there was an I94 attached and the last one is still valid, so he is in status now.
My concern is (1) that when the time comes to adjudicate his 485, someone might look back and say err, ten years ago there was a problem... I hope it won't happen, but I just want to be safe and my understanding is that returning with a stamped H4 would cure this and (2) that if we decide to go for the stamping, whether someone in the embassy would dig up the records and cause us problems.
Thanks for the insight.
Since you already got H4 extensions with attached I-94s, current status is not an issue. The issue will be with his I-485 application as he was out-of-status when it was applied. You should try and go to the US consulate outside US and get a H4 stamped. In my opinion, getting new VISAs will not be an issue since it was an honest mistake on your part and as soon as you realized it you applied for extensions and you should acknowledge it in your visa application. You have to get this done before USCIS issues an RFE asking for your son's status information. For how long was your son out of status. The duration of invalid status has different implications. In any case, before leaving US, you should take advise from a good attorney. Once your son gets H4 visa stamped and re-enters US on a valid H4 status, his previous out-of-status issue will be void. Please note that re-entering on AP does not void earlier out-of-status.
When I look back at the timelines, when we applied for the 485s, we thought he was in status but afterwards, we realized he might not have been. Since then, we have renewed the H4 twice, and each time there was an I94 attached and the last one is still valid, so he is in status now.
My concern is (1) that when the time comes to adjudicate his 485, someone might look back and say err, ten years ago there was a problem... I hope it won't happen, but I just want to be safe and my understanding is that returning with a stamped H4 would cure this and (2) that if we decide to go for the stamping, whether someone in the embassy would dig up the records and cause us problems.
Thanks for the insight.
Since you already got H4 extensions with attached I-94s, current status is not an issue. The issue will be with his I-485 application as he was out-of-status when it was applied. You should try and go to the US consulate outside US and get a H4 stamped. In my opinion, getting new VISAs will not be an issue since it was an honest mistake on your part and as soon as you realized it you applied for extensions and you should acknowledge it in your visa application. You have to get this done before USCIS issues an RFE asking for your son's status information. For how long was your son out of status. The duration of invalid status has different implications. In any case, before leaving US, you should take advise from a good attorney. Once your son gets H4 visa stamped and re-enters US on a valid H4 status, his previous out-of-status issue will be void. Please note that re-entering on AP does not void earlier out-of-status.
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vedicman
01-20 01:46 PM
Any EB3 here?
Famous American Immigrants � Immigration Update (http://immigrationupdate.wordpress.com/famous-american-immigrants/)
Even your link does not provide which category these immigrants came from - possibly because employment category did not exist, they came early in childhood with parents......
Besides stop creating the rift between the categories in this forum!
Einstein - Germany
Madeleine Albright: Czechoslovakia
John Muir: Scotland
Joseph Pulitzer Hungary
Felix Frankfurter: Austria
Martina Navratilova: Czechoslovakia
Irving Berlin: Russia
Saint Frances X. Cabrini: Italy
Mary Harris Jones: Ireland
Edward M. Bannister: Canada
Rita M. Rodriguez: Cuba
Ieoh Ming Pei: China
Subranhmanyan Chandrasekhar: India
David Ho: Taiwan
Ang Lee: Taiwan
Hakeem Olajuwon: Nigeria
Famous American Immigrants � Immigration Update (http://immigrationupdate.wordpress.com/famous-american-immigrants/)
Even your link does not provide which category these immigrants came from - possibly because employment category did not exist, they came early in childhood with parents......
Besides stop creating the rift between the categories in this forum!
Einstein - Germany
Madeleine Albright: Czechoslovakia
John Muir: Scotland
Joseph Pulitzer Hungary
Felix Frankfurter: Austria
Martina Navratilova: Czechoslovakia
Irving Berlin: Russia
Saint Frances X. Cabrini: Italy
Mary Harris Jones: Ireland
Edward M. Bannister: Canada
Rita M. Rodriguez: Cuba
Ieoh Ming Pei: China
Subranhmanyan Chandrasekhar: India
David Ho: Taiwan
Ang Lee: Taiwan
Hakeem Olajuwon: Nigeria
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needhelp!
09-16 03:01 PM
DH called and said he did it too!! YAAAAYYY Its my lucky day.. He is now officially initiated into IV.
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GotGC??
05-15 12:03 PM
Thanks for your reply.
My understanding is there can be only one AOS at any time.
- So if the AOS is applied based on the EB3 140, can another AOS be filed based on EB2?
- If a AOS has been applied based on EB3, can it be "upgraded" to EB2 ??
Thanks.
Not an expert but my guess is this window of opportunity will exist till next Fiscal year's bulletin is out i.e around 10th sep 2007. If you haven't already filed 485 you are unlikely to be approved during the window. I would go with aggressive approach i.e file based on pending EB2 and upgrade to PP. If you want to be conservtive because you never know if the porting will be accepted or not, or if it may add more delay just file eb3 485 right away, take the beneifts like ead etc.. and later port if retrogressed.
My understanding is there can be only one AOS at any time.
- So if the AOS is applied based on the EB3 140, can another AOS be filed based on EB2?
- If a AOS has been applied based on EB3, can it be "upgraded" to EB2 ??
Thanks.
Not an expert but my guess is this window of opportunity will exist till next Fiscal year's bulletin is out i.e around 10th sep 2007. If you haven't already filed 485 you are unlikely to be approved during the window. I would go with aggressive approach i.e file based on pending EB2 and upgrade to PP. If you want to be conservtive because you never know if the porting will be accepted or not, or if it may add more delay just file eb3 485 right away, take the beneifts like ead etc.. and later port if retrogressed.
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desitechie
07-14 08:43 PM
One should be good enough.
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natrajs
04-21 02:38 PM
Isn't this everyody's concern ? GC process is something that has absolutely no predictability. It's all luck...I've been waiting for that moment from almost 8 years postponing many important decisions in life. So, I've come to the realization that the only thing we can do is hope.
Congrats and Best Wishes
Congrats and Best Wishes
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ita
11-19 11:03 AM
Is is it ok if you receive just 2 AP papers?
WHat is the difference between 2/ 3 AP papers?
Thank you.
WHat is the difference between 2/ 3 AP papers?
Thank you.
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reddymjm
12-04 04:52 PM
I am also flying to Chennai in 2 days.
nirdlalegcade
02-26 12:37 PM
what if my I-485 is July 20, 2007 (it is processing), how long will it take before they can send my GC to me?
bheemi
03-15 11:05 AM
Hi,
I dont think anybody pushing forward about this issue..Filing of 485 during retrogression..
Immigration Voice :
Is there any scope any where to add this to current bill...are our immigration voice working towards this issue at all...if so can you pls let us know what you are doing for this issue..because I did not see anywhere updates from immigration voice ..or any ammendments on this issue..
I dont think anybody pushing forward about this issue..Filing of 485 during retrogression..
Immigration Voice :
Is there any scope any where to add this to current bill...are our immigration voice working towards this issue at all...if so can you pls let us know what you are doing for this issue..because I did not see anywhere updates from immigration voice ..or any ammendments on this issue..
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