Message from IV: Multiple 485s and tips from immigration lawyers

[pappu]

There have been members on forums trying to find answers to common questions. Here are some answers and tips from Susan Henner

http://www.susanhenner.com/firmprofile.jsp

====================================

Question: multiple filing of I485 if both husband and wife have I140 approved.
As far as I know a person can and should only file 1 adjustment of
status
application. You can not be a double adjustment applicant! So choose
the
one with the 'more current' or older priority date as we expect some
retrogression in up-coming months. This may go by the numbers and
dates.
So you want to use the oldest date possible.

If a person uses one of his I-140s and the adjustment is for some
reason
denied, it appears that there is no reason why they can not then
re-apply
for adjustment using the other approved I-140 providing all the
requirements
are met under the petition.

My other advice concerns the fact that the filing fees are increasing
on
July 30th. This means every case should be filed by July 29th to avoid
any
increase. This really only gives people between July 1 and July 29 to
file
cases. So it will be a big rush.

I also recommend scheduling physician appointments ASAP. I am told
that
many INS physicians are extremely backlogged due to the visa
availability
now.
=========================
If you have other answers from lawyers, you can post them. Make sure to post the lawyer's name. Do not post your opinion. Post legal advice given to you by your lawyer, with the lawyer's name. This will help members get accurate advice and not opinions.

[pappu]

question: can I file without employer letter
For an employment-based petition, in order to proceed and be valid,
they
need to still INTEND to be employed by the sponsoring employer if and
when
they get their green card. The employer however, does not need to sign
any
forms per se with relation to the adjustment petition. If the alien is
currently working for the sponsoring employer (on H-1B or other) he or
she
can port or transfer employers without penalty or without losing the
green
card process 180 days after they file the I-485 petition. At that
point,
they can change employers and work for whomever they wish (provided
they
have a valid work permit)

The forms which need to be filed with the I-485 include;

Form I-485 for EACH applicant with $325 filing fee ($225 if under age
14)
Proof of approved I-140
Form G-325A for each applicant
G-28, if attorney involved
Form I765 Work Permit (optional) (filing fee of $180)
Form I-131 Travel Permit (optional) (filing fee of $170)
Fingerprint fee of $70 for each
Medical examination by INS approved doctor
Passport, visa, approval notices and I-94 card showing all years in the
US
in valid status and maintenance of status
Marriage certificate, birth certificates of children.
Form I-134 Affidavit of Support (notarized) or I-864, with tax returns
(1
year must be attached, but income for three years must be listed); job
letter from the alien's current employer; and pay-stubs.
If the alien is NOT yet working for the sponsoring employer, I like to
include a letter from the employer stating that if and when the alien
gets
his residency, they still intend to hire him or her.

Hope this answers the questions.

[pappu]

some tips from Susan Henner:

Although the principal employment-based categories are current for
July,
future retrogression is indeed possible later this fiscal year,
particularly
if demand for immigrant visas increases substantially. Visa numbers
can
retrogress in the middle of a month and become unavailable without any
prior
notice. If there is a mid-month retrogression, USCIS could elect to
stop
accepting adjustment applications. While this is unlikely to occur in
July
2007, it becomes more and more possible as the fiscal year progresses.


It seems that cases not completed before any future retrogression will
be
held in abeyance until priority dates again become current. Having an
adjustment on file, even if the case is in abeyance, allows for
eligibility
of work authorization and advance parole, and may be particularly
critical
in circumstances where there are children who may reach the age of 21
during
the process.

An applicant for adjustment of status MUST be in the United States in
order
to be eligible to file. Overseas spouses of adjustment applicants
should
be encouraged to enter or reenter the United States as soon as possible
in
order to be included in the principal's adjustment application.


H-1B and L-1 nonimmigrants may maintain H or L status while their
adjustment
of status applications remain pending.

Whenever possible an adjustment application should be filed
concurrently
with an I-140. This is permitted as long as the visa priority date is
current. Even if priority dates retrogress after filing, the I-485
will be
placed in abeyance and remain pending, although it cannot be approved
until
the priority date is current again. Yet extensions of work
authorization
and advance parole may be obtained during this period.

It may be advisable to file I-140s by premium processing if available
for
the employment-based immigrant category. This may hasten the issuance
of an
approval and may also increase the possibility that an adjustment
application could be approved and an immigrant visa number captured
prior to
the end of the current fiscal year or before any future visa
retrogression.

[ArunAntonio]

Thanks for posting this I was searching for some advise on this aspect ....

I have one questions based on this comment :

If a person uses one of his I-140s and the adjustment is for some
reason denied, it appears that there is no reason why they can not then
re-apply for adjustment using the other approved I-140 providing all the
requirements are met under the petition.

So lets say Husbands 485 gets deined for some reason and the wife has an approved I 140 but her PD is not current any more, can the substiution still happen or are the couple doomed?

Please respond.

AA

[gc_chahiye]

Originally Posted by ArunAntonio

Thanks for posting this I was searching for some advise on this aspect ....

I have one questions based on this comment :

If a person uses one of his I-140s and the adjustment is for some
reason denied, it appears that there is no reason why they can not then
re-apply for adjustment using the other approved I-140 providing all the
requirements are met under the petition.

So lets say Husbands 485 gets deined for some reason and the wife has an approved I 140 but her PD is not current any more, can the substiution still happen or are the couple doomed?

Please respond.

AA

this is what I understand:
the wife can continue on her H1 extensions. The husband can stay until the current H1 expires. For future extensions he will need a fresh PERM/I-140 (since PD is not current).

Might be worth filing separately now, and joining the spouse's petition once its approved. From what I have read so far (CHECK WITH ATTORNEY) you can add your spouse to your I-485 within 180 days of approval, if you were married before it got approved.

[cram]

For an employment-based petition, in order to proceed and be valid, they need to still INTEND to be employed by the sponsoring employer if and when they get their green card. The employer however, does not need to sign any forms per se with relation to the adjustment petition. If the alien is currently working for the sponsoring employer (on H-1B or other) he or she can port or transfer employers without penalty or without losing the
green card process 180 days after they file the I-485 petition. At that point, they can change employers and work for whomever they wish (provided they have a valid work permit)

I have an employment-based petition and I'm presently unemployed. From what I understand, the sponsoring employer can hire me when I get my green card. So, when I get my EAD, which is most probably in 3 months, can I use it to work for whomever I wish?

[jonty_11]

Originally Posted by cram

I have an employment-based petition and I'm presently unemployed. From what I understand, the sponsoring employer can hire me when I get my green card. So, when I get my EAD, which is most probably in 3 months, can I use it to work for whomever I wish?

u r currnetly out of status if u are in US.

[sb724]

Hi thanks for the FAQ.

I have question, really do we need to submit
Form I-134 Affidavit of Support (notarized) or I-864 for employment based dependents AOS.

Why some attorney are advising and some are not?
If we follow 485 instructions we do not need to submit.

Are there any body submitted with out affidavit of support to thier dependent's AOS?

[endlessloop]

Originally Posted by cram

I have an employment-based petition and I'm presently unemployed. From what I understand, the sponsoring employer can hire me when I get my green card. So, when I get my EAD, which is most probably in 3 months, can I use it to work for whomever I wish?

If an employer files for your green card and you do not work for the employer, it is considered a visa fraud. Also, you have to wait for 180 days after applying for I-485 to be eligible to work for an employer other than the one who filed your labor.

Since you are in the country illegally, it would probably be faster for you to get permanent residency if the new immigration bill passes.

[dhirajs98]

I have one PERM EB2 labor certified and I-140 PP in under process. Received an RFE for I-140 on June 1st and my company's paralegal analyst responded back on June 6th. Since then there is no news on my I-140. I have another RIR EB3 labor stuck in DBEC based on the case analyst email it should be cleared by June 30th but there is no assurnace on that. Now I am in a fix whether I should file my I-485 on the PERM EB2 where I-140 is stuck with an RFE or should wait for RIR EB3 to get approved.

Also is it possible to file I-485 on my PERM EB2 case now and later use EB3 RIR PD in EB2 case when I get my EB3 labor and I-140 approved?

Please post your experiences and advise. This is really important for me to find an answer b4 I take any step forward.

Thanks,

-Dhiraj

[vxg]

Folks,
My wife was stuck in namecheck during the H-4 stamping 3 years back. She gave full FP and got cleared in 6 weeks. Question i have is that i will be filing I-485 in July so is there a chance that she will be stuck in I-485 Name check as well? Anyone with experience? Also, if she get's stuck and I am cleared does the application get's stuck completely?

[ysnraju]

Yes!! You can work now it self. It is legal under some circumstances please see Murthy website with AC21 FAQ :http://www.murthy.com/news/UDac21qa.html

Question 2 : I lost my job before the 180-day period. Can I still use portability? TOP

Quite possibly, provided the I-485 remains in pending (unadjudicated) status for at least 180 days. It is the I-485 processing time that is important, not when the beneficiary changes positions. This is because the "green card" (GC) is based upon a future job offer. The person is not required to have worked for the GC-sponsoring employer prior to filing or obtaining the GC. Accordingly, it appears the AC21 law did not intend to change the prior law, which only requires a future job offer with respect to the GC sponsorship in employment-based cases. Please refer to the disclaimer at the end of this page, since, at the time of this writing, the regulations have not been published.



Question 3 : I never worked for my sponsoring employer. It was a future job offer. Can I use AC21 portability? TOP

Yes, under the same circumstances as Question 2.

[cram]

Endlessloop wrote:

If an employer files for your green card and you do not work for the employer, it is considered a visa fraud. Also, you have to wait for 180 days after applying for I-485 to be eligible to work for an employer other than the one who filed your labor.

Since you are in the country illegally, it would probably be faster for you to get permanent residency if the new immigration bill passes.

Everybody here is on common grounds. We are all in this forum to help each other with only one objective: to obtain our green cards. There is no need to make assumptions to make each other feel bad. With all we have to go through with the retrogressions and whatever comes with it, this is the last thing we need. AND...No, sorry to disappoint you but I am not in the country illegally and I don't intend to commit fraud... is that clear?????????

When I filed my I-485, the letter/job offer of my employer stated that the job will be open for me as soon as I get my green card. So when I get my EAD in 3 months, what am I going to do with it if I will not be working for my employer yet.

This is because the "green card" (GC) is based upon a future job offer. The person is not required to have worked for the GC-sponsoring employer prior to filing or obtaining the GC.

so ... will this answer my question?

[raj2007]

Originally Posted by cram

Endlessloop wrote:



Everybody here is on common grounds. We are all in this forum to help each other with only one objective: to obtain our green cards. There is no need to make assumptions to make each other feel bad. With all we have to go through with the retrogressions and whatever comes with it, this is the last thing we need. AND...No, sorry to disappoint you but I am not in the country illegally and I don't intend to commit fraud... is that clear?????????

When I filed my I-485, the letter/job offer of my employer stated that the job will be open for me as soon as I get my green card. So when I get my EAD in 3 months, what am I going to do with it if I will not be working for my employer yet.

Yes you can work on EAD but join the employer after getting GC. He should support you if you get any RFC that he still intends to hire you.



so ... will this answer my question?

[cram]

Thanks for your reply, raj2007. My employer better hire me because my GC would be dependent on that What is RFC?