Started fellowship while still waiting for I-485 approval & NIW I-140 approval

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vidyaram

Registered Users (C)
Hi all
I had a I-485 application based on Labor certification and it was stuck in Name check for almost 4.5 yrs. In the meantime, I had applied for NIW I-140 after getting a good suggestion from a fellow poster here. I didn't get the I-140 approval till I started my fellowship last October:( Now, I got the I-140 approved on Apr 4th. I couldn't apply for I-1485 based on NIW because the physical approval notice hasn't reached me yet. Yesterday, I got an email from USCIS that they have sent RFEs for my spouse and me! I am guessing it may be a EVL request for me! Given a very different case like mine, what would you do?
1) Could I argue that my I-140 has been approved now and send the original paystubs?
2) Both my previous employer and the university have agreed to help me. If I could get a letter of employment from the University hospital for a faculty position, would it help me.(This is based on the premise that green cards are for future jobs and if I have a job offer at the time of my approval, would that work)
I should have thought all this out before taking up the fellowship but I had been kept waiting for a long time and my fellowship program was getting tired of waiting for me!
Thanks in advance
Vidyaram
 
vidyaram said:
Hi all
I had a I-485 application based on Labor certification and it was stuck in Name check for almost 4.5 yrs. In the meantime, I had applied for NIW I-140 after getting a good suggestion from a fellow poster here. I didn't get the I-140 approval till I started my fellowship last October:( Now, I got the I-140 approved on Apr 4th. I couldn't apply for I-1485 based on NIW because the physical approval notice hasn't reached me yet. Yesterday, I got an email from USCIS that they have sent RFEs for my spouse and me! I am guessing it may be a EVL request for me! Given a very different case like mine, what would you do?
1) Could I argue that my I-140 has been approved now and send the original paystubs?
2) Both my previous employer and the university have agreed to help me. If I could get a letter of employment from the University hospital for a faculty position, would it help me.(This is based on the premise that green cards are for future jobs and if I have a job offer at the time of my approval, would that work)
I should have thought all this out before taking up the fellowship but I had been kept waiting for a long time and my fellowship program was getting tired of waiting for me!
Thanks in advance
Vidyaram
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Wait to receive the RFE first then see what you will do.
 
It would be wise to wait and see what this RFE is before panicking.
What is an EVL request? It might just be that they are getting ready to finally approve your 485 as well. Recently they agreed to clear all cases with name checks pending for over 180 days. Now that would be ironic, if they are looking to approve your 485 based on your labor cert., that might be slightly problematic for the reason that AC21 portability might not apply here. I am sure your lawyer could sort all that out given that your NIW petition is approved. Anyway all of this is just speculation, lets wait and see what it is. Keep us posted.
 
Update:
Got the RFE today. It states that I no longer reside in the same state as the underlying form I-140 petitioner.
Therefore submit a currently dated later from your original I-140 employer which addresses this discrepancy. This letter should indicate the terms and conditions of labor certification continue to exist.
OR
Submit a letter from the present employer stating the salary, start date and the type of employment(if it is the same category basically AC21)
My old employer is willing to give me a letter with the date and even ready to hire me back.
Would the letter just suffice or should I go back to the previous employer and for how long should I be employed there after I get the green card?
Please give me suggestions
Thanks in advance
Vidyaram
 
Looks like they want to verify that the conditions for the LC based green card still exist. Either a job based on AC21 transfer or that you will return to that job for which you were sponsored.
It is likely that the letter from your old employer would likely be the least problematic solution, however you would be expected to in fact join/rejoin that job to demonstrate you had a bona fide intent. How long is that? Nothing is crystal clear about that, but most lawyers suggest 6 months. Basically you may be questioned about this when you apply for citizenship.
I am not sure if your lawyer can ask them to approve your 485 based on your NIW 140 and do away with the basis for the RFE.
You should consult with your lawyer and carefully plan your response.
Good luck and let me know what happened. I am planning a job change this summer as well and your experience would be really helpful.
 
PosMd: Thank you so much for your quick reply. I am talking to my lawyer tomorrow evening. Will surely keep you posted!
Thanks,
Vidyaram
 
Facing similar experiences with fellowship / I-485

I fear that I will be facing a similar RFE soon. I completed 3yrs (J1 waiver) and will be finishing 5 yrs of service with same employer in a MUA. My 3 yr fellowship will start in july 2008.

I consulted a lawyer and was told not to apply for a NIW I-140 as it would cause a RFE on my pending I-485 ( I have an approved LC, I-140 and have EAD / AP). It looks like you lawyer thought otherwise and did apply for NIW...do you think your RFE was triggered by the NIW or was it simply because you changed your address to another state?

Do you think it is worth applying for NIW as a back up thru another lawyer? Can you do premium processing for NIW I-140?

I am in the process of renewing my EAD....my lawyer is filing the EAD renewal at the Texas center (which apparently caters to the state where my fellowship is) instead of Nebraska center where my I-485 is pending. Did you have the same issue wrt different service centers handling EAD renewals for fellowship and I-485?

Based on threads here it appears AC21 for fellowship is impossible...or is it? I am curious as to what your lawyer decides to do AC21 or use your former employer's intent to hire for future employemt. If you choose the latter do you have to join your old employer right away for ? 6 moths or can you wait till the end of your fellowship?

I have consulted a couple lawyers and would be happy to speak with you to share my experiences. I sent my phone # as a private e-mail to you.
Rog
 
AC21 & fellowship

Just a follow up on my last post. My fellowship program is willing to help me with AC21 but the threads here seem to suggest that AC21 does not apply to fellowship as 1) fellowship is training and not a permanent job 2) salary is quite low (75% less in my case than what is listed in LC & I-140).

The USCIS memo on AC21 mentions portability applies as long as we are in "similar" job. One lawyer told me that for physicians you simply have to be employed as a doctor regardless of the field / speciality of medicine. So fellowship should meet this criteria of similar job.

USCIS memo mentions that salary can be considered in determining if the job is similar but it is not as important as the actual job description. It seems allowance is made to salary difference but to whaht degree is not specified. Not sure if job description trumps salary always in determining similar job for AC 21.

Any one know of some one who used AC21 successfully for fellowship?
 
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Hi
I don't think that my NIW I-140 triggered my RFE. The USCIS states that I am not living in the same geographical area. But at the same time, I did my change of address almost 5-6 months ago and my NIW got approved 14 days ago and the RFE came 2 days ago.
After talking to my lawyer today, will let you know if it is worth applying for NIW 140. Worst case, if my I-485 based on this has troubles, I think the NIW will be a good backup. There is no premium processing for NIW 140 atleast when I applied. I applied for NIW in Jan 2007 and it got approved in Apr 2008.
EAD was in the same service center for me because the state I moved to was also in the same service center.
From what I read here, AC 21 seems impossible. My lawyer advised me against it too at that time. She said that if I would be ready to go back to original employer at the time my I-485 was adjudicated. I am hoping that I could go stay till Jul 2008 for my fellowship. Will have to decide that after talking to my lawyer today.
My program was willing to give an employment verification letter too but USCIS wants the salary stubs from the day you started in the fellowship and if they think that it is not the same kind of job after your response to the RFE, there is no way you can resubmit documents. It is upto the adjudicating officer to decide and I don't think it will be a favorable one.
 
update after talking with my lawyer

When I was talking about the RFE, the lawyer right away said go back to the previous employer and get a couple of pay stubs before May 27 and we can send the response back. I told him that I if could stay a little longer till June end, I'll be able to finish the fellowship. I have already completed my clinical year in fellowship before I did my J1 waiver. He consulted with another lawyer in their firm and then told me, that he will send the RFE response in the last minute He thinks that they could get approved based on the employment letter offered from July 1. But this is USCIS, so anything could happen and I have to reapply for H1B. I started using my EAD for travel from 2004 and my H1 was there from 200-2003 and then extended it in 2003. So, I will have 2 years of unused H1 and could go back to India to get the stamp in the event this 485 is denied.After I enter U.S, I can apply for a new I-485 based on the NIW approval and get EAD and AP and then wait for another 1.5 years to get the approval based on capturing my original priority date and the processing times in NSC as of now.
One time, I feel that I will go back to my previous employer for 6 months and then get done with the green card and then I also feel that it will be nice if I can finish my fellowship with the second option. But the only problem is you never know how USCIS will change it's processing times in the last minute every year and with the amount of new applications after last July, we know how long they can take! I also don't know if the lawyer changed his mind for the amount he is going to charge for all these additional things.
Edited to add: The lawyer says you can't file for 2 485s at one time. Is that true?
Vidyaram
 
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vidyaram said:
. I started using my EAD for travel from 2004 and my H1 was there from 200-2003 and then extended it in 2003.
Vidyaram
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You mean, you used your AP for travel?. If you traveled with AP and at the same time you had EAD not used to work with, this means that your H is going since then till you used the EAD and may be already exhusted toward the six years.
 
I had used my AP to travel in 2004. Once you use your AP, doesn't it mean that you are using your adjustment of status and hence EAD and therefore not using H1 status?
Thanks again
Vidyaram
 
vidyaram said:
I had used my AP to travel in 2004. Once you use your AP, doesn't it mean that you are using your adjustment of status and hence EAD and therefore not using H1 status?
Thanks again
Vidyaram
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This is completely wrong. If you use AP for travel this will not change your H status at all, using EAD will. To stop the clock of the H (in case you may need the rest of the years in case your I-485 get denied) you should use your EAD either with your H sponsor or with any other employer and fill the I-9 form. Only at that point you will be no H anymore.
 
Thanks mmed!
I have one more question. My attorney doesn't want me to apply for the I-485 based on NIW right now. "It is because the USCIS maintains, that one must be in a lawful nonimmigrant status as opposed to working on an EAD in order to submit an I-485 in any of the employment-based categories." Is this true?
Thanks
Vidyaram
 
vidyaram said:
Thanks mmed!
I have one more question. My attorney doesn't want me to apply for the I-485 based on NIW right now. "It is because the USCIS maintains, that one must be in a lawful nonimmigrant status as opposed to working on an EAD in order to submit an I-485 in any of the employment-based categories." Is this true?
Thanks
Vidyaram
Click to expand...

I have no idea regarding this.Other folks any idea!
 
vidyaram said:
When I was talking about the RFE, the lawyer right away said go back to the previous employer and get a couple of pay stubs before May 27 and we can send the response back. I told him that I if could stay a little longer till June end, I'll be able to finish the fellowship. I have already completed my clinical year in fellowship before I did my J1 waiver. He consulted with another lawyer in their firm and then told me, that he will send the RFE response in the last minute He thinks that they could get approved based on the employment letter offered from July 1. But this is USCIS, so anything could happen and I have to reapply for H1B. I started using my EAD for travel from 2004 and my H1 was there from 200-2003 and then extended it in 2003. So, I will have 2 years of unused H1 and could go back to India to get the stamp in the event this 485 is denied.After I enter U.S, I can apply for a new I-485 based on the NIW approval and get EAD and AP and then wait for another 1.5 years to get the approval based on capturing my original priority date and the processing times in NSC as of now.
One time, I feel that I will go back to my previous employer for 6 months and then get done with the green card and then I also feel that it will be nice if I can finish my fellowship with the second option. But the only problem is you never know how USCIS will change it's processing times in the last minute every year and with the amount of new applications after last July, we know how long they can take! I also don't know if the lawyer changed his mind for the amount he is going to charge for all these additional things.
Edited to add: The lawyer says you can't file for 2 485s at one time. Is that true?
Vidyaram
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Here are my views on this. Remember this is not legal advise, but just an opinion from someone in a similar situation.

In regards to filing 2 separate 485s, I am not aware of any rule that specifically prohibits it. In fact, last year we considered doing it, ie one set based on my NIW140 and another set based on my wifes employer sponsored LC based 140. In the end we decided against it and sent hers in for CP and it has gotten buried in the NVC. However cases with two 485s like this have previously caused confusion and delays for the applicants. Per the law, the lawyer should be able to substitute the underlying LC based 140 with the NIW140, and have the 485 approved, however the NSC has a peculiarly hard stance on this and tends not to do it, TSC is better with this. It is unfortunate since, for many other cases at other service centers it can and has been done. I am not sure which center your applications are at. Given all the mess with your case another set of 485s might not be the best idea.

If you want your green card right away and that is what is most important to you, then your lawyers suggestion of going back and joining the old group will be the easiest route. Considering the pain you have endured, it just might be worth thinking about, they appear to be in the mood to close out your case and you could take the view to just let it be! You took your chance and unfortunately it did not go as planned.
If on the other hand you give more priority to your fellowship, then take the chance involved and get the employer offer letter showing a July1 start date. However understand that this involves an element of risk. I think that reverting to a H1b status is definitely warranted if you pursue this option, mainly as a back up plan. The cost issue is moot to be honest, since, I am sure you realise by now that the entire system is costly, inefficient and unfair and luck plays a major part (and that is putting it kindly).

Best of luck and keep us posted.
 
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Vidyaram, based on your experience so far would you have done anything differently? It look like your troubles were triggered merely by a "change of your address". Could you have rented a home (or use a family / friends address )near your previous job just to avoid filing change of address? Would you even attempt AC21 for fellowship...what did your lawyers say regarding AC21 for fellowship?
I sent my telephone # as a private message. I would be happy to share my experince with my lawyers.

The following is for any one with an interest in this thread:

My 5 years of NIW will be up in 8/08. Can I file NIW I-140 and I-485 concurrently in 8/08 even if EB-2 India is not current. Based on Q 31 in http://www.uscis.gov/files/nativedoc...ILA_2Apr08.pdf I am confused as to whether 1) I can file I-140 & I-485 concurrently even if PD is not current or 2) NIW I-485 can be filed even if PD is not current if NIW I-140 is approved first. At present I am to join felowship in 7/08 and I have EAD /AP / Approved I-140 (LC) with I-485 (PD 11/04) pending for >180 days.

I am worried that change of address to another state for fellowship would trigger a RFE for AC21 eligibility and fellowship may not qualify. I have talked to 2 lawyers and no one as yet told me fellowship can not outright qualify for AC21 but said there might be a small risk.

I would be happy to talk to you all ...just send me your phone # by private message thru this forum and I can share more details.

It would be great if some one who did successfully navigate AC21 for fellowship post their experience here. Do you guys know of any one who successfully did AC21 for fellowship??
 
Study leave for 3-year fellowship

I am about to start fellowship on EAD this July. I-485 pending for >180 days (EB-2 India PD 11/04). My lawyer advised me to not terminate employment but simply take a leave of absence without pay / benefits and ammend the contract to reflect that I am being sent for fellowship to get skills that will benefit my current employer. I actually want to return to my current employer after fellowship. The ammendent also state that I will be re-joining in present capacity follwing 3-yr leave of absence. The new contract with the present sponsor also allows me to moonlight in the capacity outlined in my LC and I-140. Still working out pay rate per for moonlighting..trying to make it comparable to the pay / yr quoted in LC and I-140.

I have several months of paid vacation which I accumulated and was hoping to use it to generate pay stubs if necessary as was recommended by Vidyaram's lawyer in the case above.

Any thoughts from folks here if this arrangement will go well with USCIS in case I get an RFE like Vidyaram during fellowship?
 
Rog said:
I am about to start fellowship on EAD this July. I-485 pending for >180 days (EB-2 India PD 11/04). My lawyer advised me to not terminate employment but simply take a leave of absence without pay / benefits and ammend the contract to reflect that I am being sent for fellowship to get skills that will benefit my current employer. I actually want to return to my current employer after fellowship. The ammendent also state that I will be re-joining in present capacity follwing 3-yr leave of absence. The new contract with the present sponsor also allows me to moonlight in the capacity outlined in my LC and I-140. Still working out pay rate per for moonlighting..trying to make it comparable to the pay / yr quoted in LC and I-140.

I have several months of paid vacation which I accumulated and was hoping to use it to generate pay stubs if necessary as was recommended by Vidyaram's lawyer in the case above.

Any thoughts from folks here if this arrangement will go well with USCIS in case I get an RFE like Vidyaram during fellowship?
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You should decide which you need more; GC or certain carrier. The decision is difficult I know. The RFE is usually triggered if something weired happened especially changing address in another state or so, try to be in the same state if you can. Taking unpaied vacation for three years may not be allowed by many places (I do not know what about your place). To get the same pay by moonlighting and vacations and so on is not the issue, the point here is to be in the same carrier (from the view of the USCIS, not your view).
 
My current employer is allowing me to take 3 yrs of unpaid study leave for fellowship. Employer is willing to confirm to USCIS that fellowship will let me return with skills required by clinic and that the clinic intends to hire me back under the terms of LC / I-140 in the future. Basically I stay an employee of the clinic without any medical insurance benefits etc while I do my fellowship. I will be allowed to return on weekends to moonlight etc. if I choose to.
I guess this is the best I can expect from my current employer while heading out to join fellowship. I will be maintaining 2 residences as I will be moonlighting with my current employer as well.
 
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