Aos While Doing J-1 Waiver

**jackpot007** · 28th March 2005, 03:22 PM

Hi all,
I was wondering if I could have some expert opinion on my situation. I'm an unmarried Indian physician doing J-1 waiver in an underserved area. I'm in my second year.

My father filed a family petition for mr when he was a permanent resident in category F2B. The priority date is 9/1999. Now he has naturalized and became a US citizen. I'll upgrading my category to F-1,the priority date for which will be current for me.

I was wondering if I could apply for AOS or do I have to wait till completion of 3 year underserved requirement. Any suggestions?

Thanks.

**hadron** · 28th March 2005, 03:51 PM

Wait for completion of 3 years in H1b. At the I485 stage they will test whether you have an HRR and whether you fulfilled your waiver obligations (3 years on H1b status practicing full time in HPSA/MUA with sponsorship by state DOH). This is independent from the manner in which you got an immigrant petition approved (EB or F). (The only exemption is the 'national interest waiver for physicians'. In that case you are allowed to file for AOS whenever you feel like.)

**jackpot007** · 28th March 2005, 07:01 PM

Thanks hadron for your input. If I apply for AOS based on NIW, can I use that priority date for the AOS based on my father's petition?

**kidsdoc** · 28th March 2005, 07:55 PM

I totally agree with what hadron has suggested

**hadron** · 29th March 2005, 09:10 AM

> If I apply for AOS based on NIW, can I use that priority date for
> the AOS based on my father's petition?

Interesting question, an acquaintance of mine is faced with the same question but wasn't able to get a straight answer from CIS or attorneys. Can you file an EB petition and switch the same I485 to a FB petition later on ?

This is what I know, I am not sure whether it is applicable here: If you file an I485 concurrently with an EB petition and the EB petition (I140) is approved, you can exchange it for another I140 (approved or pending). If the initial I140 is denied for some reason, the I485 disappears into a puff of white smoke as if it never existed, and as a result you cannot transfer it to a different I140.

If you want to have a look into the 'standard operating procedure' (SOB) for the processing of I485 applications. Maybe they are saying something about transferring from one category to the other in there:

http://www.ilw.com/lawyers/seminars/...citation2b.pdf

It is a 269 page PDF tomb, good luck !