Cancel I-485 and reapply thru employment-based GC?

[charts]

It's my friend's case. She got married in 2004, but filed for I-485 one year later. She overstayed before getting marriage. Their first interviewed is in mid 2006, but it wasn't good. Now, they just received the second interview appointment on this coming March 17th.

She's afraid that the interview will go terrible again due to the irresponsible husband who is alcoholic and doesn't care about her status. He screwed up in the first interview by showing bad personality and didn't respond to some important questions e.g. why he married her? That's why she's afraid that the case will be denied. Nothing she can do to change her USC husband.

If the case is denied, she will be deported. So she wants to know if she should cancel the application and the interview next month, then reapply for GC thru her employer which she is eligible for. What are her best options and what are her chances?

Thanks for all the help and may god bless you all.

 

[Al Southner]

Of course, but it might not amuse USCIS

If she likes, she can do this because there is nothing that prevents her from applying if she is eligible. He jerk husband needs to be left alone to drink more and destroy himself....


If this is the second interview, they are going to be toasted and grilled by interview officers, because they are going to be seperated. It is not going to be an easy interview and if the husband is an alcoholic, she might as well take him by the nuts before the interview and promise to shave him bald for screwing her life with his irresponsible behaviors.

However, I would lean towards requesting a rescheduling of this interview. After USCIS acknowledge and respond to their requests for a rescheduling , then she could withdraw her petition within couple of weeks of USCIS letter. After this, then she can apply for her employer sponsored greencard and be on the safe side and forget about mr. alcohol, at least about getting her deported

 

[charts]

Thank you all for the answers.

To apply through employment:

1) need to file an I-140 with a labor certification.
2) need to file an I-485 and she can be eligible if the priority date of the I-140 is current. Depending on the classification of her I-140;ie., eb2 or eb3 and what country she is from; it would be highly doubtful she would have a current priority date to file a 485.

Now; if somehow she can pull it off that she has a current priority date then her next problem is that in employment base greencard, a person has to be in a "non immigrant" status within 180 days of filing the 485. Since she overstayed her non immigrant status; this would eventually get denied. Next option could be to inter-file her existing marriage base 485 to the new I-140 if the I-140 has a current priority date. I know this can be done from one I-140 to another but not sure if it can be done from I-130 to I-140.

If her priority date is current they will eventually deny her 485 because she wasn't in non immigrant status when she filed it. She would then have to go the consular route. If she overstayed her non immigrant visa prior to filing her marriage base 485 by more then six months then she would be subject to the 3/10 year bar.

Therefore; it is complicated and I would say that the employment base route is probably not an option.

She overstayed for 2 years before getting married in Feb 2004, then filed I-485 in Jan 2005.

She is in NY and I believed it will take about 3 years to get the GC thru employers if she is approved.

1. if they withdraws the petition, will she be able to stay legally and for how long?

2. If she divorces then I think the EAD would also become invalid, right? And it will be more difficult for her to get GC in the future?

3. if she goes for the interview and her current petition is denied, what is the process of MTR and what is the success rate of MTR?

 

[dr_lha]

Out of status (overstay) is cause for denial of an employment based AOS. Overstay is only forgiven if you are filing AOS as an immediate relative of a US Citizen.

Your friend isn't eligible to get a green card through her employer because of her overstay.

 

[Triple Citizen]

The OPs friend, in my opinion, needs to fix the following three in order:-
(1) Her alcoholic husband
(2) Her marriage
(3) Her status with USCIS

Since she has overstayed her initial non-immigrant status, employment based GC is not an option.