140 and out of current job gurus need help

R

rk75m

Registered Users (C)
RD 09/10/03 EB2 concurent filer
Initiated status enquiry.
and more over now have to change employer and spouse using EAD.
Q1) I will be on my new H-1 but spouse using EAD was on H-4 so my question is if for some reason I-140 gets denied or RFE which could not be answered how soon should spouse leave the country.
Q2) Can spouse return on H-4, will there be lot of Questions asked at embassy.
Q3) spouse employer is willing to sponser H-1 if needed will that be a better option to return????
Please reply

I-140 EB2 09/10/03 AD????
I-485 09/26/03 no FP
EAD/FP approved 12/03
 
Q1) I will be on my new H-1 but spouse using EAD was on H-4 so my question is if for some reason I-140 gets denied or RFE which could not be answered how soon should spouse leave the country.
==> As soon as possible.

Q2) Can spouse return on H-4, will there be lot of Questions asked at embassy.
==> Yes. Maybe there will be questions asked, but if you have satisfactory answers ready, with documents, you should be fine.

Q3) spouse employer is willing to sponser H-1 if needed will that be a better option to return????
==>Absolutly. That way she/he can keep working and will not be out of status if your I-140 gets denied.
 
hi My wife is using EAD, but she have H4 visa till Mar'04 in her passport. I am on H1, not used EAD. If i-140 will deny then, is she will go back to H4 automatically ?
 
vermontgc said:
hi My wife is using EAD, but she have H4 visa till Mar'04 in her passport. I am on H1, not used EAD. If i-140 will deny then, is she will go back to H4 automatically ?
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NO. since she is using EAD, she has lost her H4 status. If 140 gets denied, she will have to leave the country and get a new H4 from a consulate to come back (provided you still work on H1)
 
thx sertra for the reply but can she file for H-1 while using EAD and staying in USA as i understand she is now AOS as 485 is pending and filing H-1 would cancel our GC petition ??
 
rk75m said:
thx sertra for the reply but can she file for H-1 while using EAD and staying in USA as i understand she is now AOS as 485 is pending and filing H-1 would cancel our GC petition ??
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Since she has started using EAD, she cannot file H1 anymore. If she does, INS will question you as to what do you want to be - a immigrant or a non-immigrant. If she wanted an H1 she could have transferred from H4 to H1.
 
dazzling....will it be tough

While giving H4 visa they check if there is a possibility of 'potential immigrant' and is there a strong tie outside US.

In this case since already used EAD....'potential immigrant' is proved.
After living in other countries than home country for long time, all financial ties will be in US. So this also acts negative.

How can one convince the immigration officer to give H4?

example: In my case, all three of us are Australian citizens. My wife has used EAD after having H4, and then H1. We don't have any assets in Australia. All of our financial asset is in US. In the event of my I140 getting into trouble, how can my wife and son get H4?

I have tried my best by providing all the documents (it weighed 8 pounds).
 
It is very difficult to prove non immigrant intent after filing AOS. Anyone staying outside India for more than 2 years is considered not to have strong ties with your home country. In your case, you have also been in Australia and then in US, even though you dont have assets in Australia.

This clearly shows that you have no grounds going back to India and would have a hard time getting any non immigrant visa stamped at a consular post abroad.

It also depends on the Consular Officer who interviews you, but most of the time, they act against us especially in the current scenario's in India. You need to wait for your time to see the I140 approval, and you have no other choice.

When your wife applies for H4 visa in India, "what would you fill n the section where , has anyone applied for immigrant status on your behalf in US??".. You cant just neglect this statement as your wife has already worked on EAD, which shows that its AOS.

Its better you stop thinking of something that is not going to happen. Think positive and you should be ok.

Hope this helps.

Want GC Soon :)
 
rajudm said:
While giving H4 visa they check if there is a possibility of 'potential immigrant' and is there a strong tie outside US.

In this case since already used EAD....'potential immigrant' is proved.
After living in other countries than home country for long time, all financial ties will be in US. So this also acts negative.

How can one convince the immigration officer to give H4?

example: In my case, all three of us are Australian citizens. My wife has used EAD after having H4, and then H1. We don't have any assets in Australia. All of our financial asset is in US. In the event of my I140 getting into trouble, how can my wife and son get H4?

I have tried my best by providing all the documents (it weighed 8 pounds).
Click to expand...

This strong tie with original country is required for the pure non-immigrant visa like B1, B2, and F1 etc. This is not a requirement for H/L visa. H/L visa are dual intent visa. They can have both intents. It does not hurt.

Even now also she can file for H1/H4. But she has to go consulate abroad to get change of status as she may not get an I-94. She can go with AP as a precaution.
 
tammy2

Yes all precautions have been taken. both my wife and son have advance parole. I140 gets approved the no problems.

I need to be positive and think that it's going to be approved. Just in case it goes down then they both have to visit Australia for getting the H4 stamping. (Chennai is ruled out due to long line up and it is better to travel to Australia than Delhi or Calcutta).

I hope for the best.

thanks
 
rajudm said:
Yes all precautions have been taken. both my wife and son have advance parole. I140 gets approved the no problems.

I need to be positive and think that it's going to be approved. Just in case it goes down then they both have to visit Australia for getting the H4 stamping. (Chennai is ruled out due to long line up and it is better to travel to Australia than Delhi or Calcutta).

I hope for the best.

thanks
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I do not think you will have any problems. the company through which worked was bankrupt company. They laid us off. almost 80% of them were with I-140 pending. Even after layoff we got approvals. That company is going from chapter 13 even then BCIS is approving I-140. Recently like one month before some one got approval. Denials due to financial condition are very small in VSC. But this is very common in NSC. So you will get it. It is just matter of time.

I went through same mental torture for year and half after the layoff. I can understand it.
 
thank you tammy2

you have given me hopes. Thanks for the moral support. I need it very much now.
 
hi Dazzling thanks for your response,
My wife is having I-94 till Mar'05, that is on H4 based. Now she is working on EAD. Is she can stay till her vaild I-94, if not how soon she need to go out of this country to come back again on H4.

All of these questions are raising, becasue of 50 days passed after my I-40 RFE respond. RFE received : 04/20/04, Replied as per USCIS site 05/10/04, LUD : 06/07/04.

Thanks
 
vemontgc

What are they doing from 06/07/04 on your I140? Was it assigned to the adjudicator who issued RFE, and it is sitting on his desk for a while...

I read it somewhere, in case of I485 denial, within 10 days the person has to leave in order to avoid deportation proceedings.
 
vermontgc said:
hi Dazzling thanks for your response,
My wife is having I-94 till Mar'05, that is on H4 based. Now she is working on EAD. Is she can stay till her vaild I-94, if not how soon she need to go out of this country to come back again on H4.

All of these questions are raising, becasue of 50 days passed after my I-40 RFE respond. RFE received : 04/20/04, Replied as per USCIS site 05/10/04, LUD : 06/07/04.

Thanks
Click to expand...

Just a few points I wish you highlight. H visa is dual intent, so as tamy2 said, you do not have to prove ties with home. Secondly, in my case I-140 was approved after 5 months of submitting RFE. There are many others alos, who had to wait for months after submitting RFE, so do not be pessimistic about your I-140.

In your situation, since wife is on EAD, her H4 is no longer valid and the I-94 alonwith that is also not valid. She is now in adjustmnet of status, and in this she can stay for as long as it takes to get the desicion on your 485, so the question about her legal status does not arise.

The only issue will be if your I-140 gets rejected. In such a case, she will have to stop working. She can go back and come on H4 (assuminfg your H1 is valid). Then her employer can file H1 for her and she can resume working.
 
Sertra2002

When does I485 gets denied? Is it immediately after I140 denial? Or is it INOD that will be issued? The day I485 is denied the person goes out of status isn't it?
 
Thanks Sertra2002, rajudm.
Atleast I got some hope on i140 after Setra2002 post. I saw some post before, if one month passed after received rfe on 140. chances are less.

Not possible to file H1 to my wife as she is not working on software. As I am on H1 so far(valid mar'05), is she can come back on h4 with the same visa(already had h4 visa and i94 till mar'05 based on my h1). ?

or Is she need to leave now and come after I filed on new h1 (after Mar'05) ?

Thanks in advance.
 
one month after RFE received!!!

It is interesting to know that you read about it somewhere that chances become less. In USCIS world ( it is same as any government working environment anywhere in the world ) the paper has to move from one table to other. What if some person in the chain goes on vacation or takes a sick leave. There is a delay in every step.


Until and unless the officer looks at RFE response nothing is written off. There are cases which went in to dormant stage for several months before a decision came out.

One interesting note....RFE responses received middle of May have resulted in 3 week decision making....I guess USCIS works in batches. When a batch is taken up you would see many approvals on the forum.
 
TO vermontgc
As I am on H1 so far(valid mar'05), is she can come back on h4 with the same visa(already had h4 visa and i94 till mar'05 based on my h1). ?
==> Yes she can use the same H4 stamped visa, but you do need to verify this from your lawyer also.


TO rajudm
When does I485 gets denied? Is it immediately after I140 denial? Or is it INOD that will be issued? The day I485 is denied the person goes out of status isn't it?
==> your I-485 is based on I-140 petetion. Once I-140 gets denied I-485 will be automtically denied without any NOID.
 
I140 denial means automatic I485 denial...

hence the person goes out of status. There is a grace period before deportation proceedings take effect. That's why using EAD without I140 approval is very dangerous situation.
 
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