140 denied, planning to appeal, question about legal status?

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ludhianvi

Registered Users (C)
Hello Friends:

I had posted a thread 2 days ago where I mentioned that my sisters' 140 was denied (http://immigrationportal.com/showthread.php?t=273309).
We are still in shock and trying to come to grip with the reality and also thinking about our options. One thing is almost certain, we are going to appeal the decision, and it seems that it takes about 14 months for a decision to be made on appeal.

My first question is, what is their status while appeal is pending? Are they allowed to stay legally in the USA? They filed for 485 concurrently, and EAD in the last month. Well, today we heard from the attorney that EAD has been approved, (looks like fast paced approval :(), check cashed early this week and now approval for EAD. Is EAD valid while appeal is pending and should they use it while appeal is pending, if it is valid?

Second, their current J-1 visa will expire on April 30, 2008. I understand that they will not be able to work beyond that on their current visa. We are searching for a job which will file H-1B for them, as well as if possible, O-1. H-1B will be valid from October 1, 2008. What will be their status from 1st May 2008 to 1st October 2008, while appeal is pending and hoping their turn comes in the lottery for H-1B?

Another favor, does anyone know of NGO veterinary associations who can help file my bro-in-laws cap-exempt H-1B. We have contacted a couple, but they are all full to capacity.
 
i think 0-1 is possible. Appealing takes a loooooong time, my advice would be to re-file, why waste more money and time. Is very rare for a 140 decision to be appeal and changed! just my 2 cents
 
If you do not appeal, the I-485 and EAD/AP are lost and they are out of status. If you do appeal, then make sure your lawyer appeals the I-140 denial but also the I-485 denial. In that case EAD and AP remain valid and the I-485 continues to be pending until the appeal has completed. This approach has one drawback though: you cannot file for a new I-140 while the appeal is pending (they will not process it). So it might indeed be faster if they switch to H1B and then re-apply.
 
everyone - a quick question, may be a stupid question: why cant she file another I-140? Till its pending cant she stay here? May be even with another 485?
 
I-140 doesn't give you status, only I-485 does. You can only file I-485 if you can prove that you are currently in status. Since the I-140 was just denied that voids her current I-485 as well, so she is now out of status. So she probably can't file for I-485 at the moment. In addition, you can only file I-485 if her priority date is current (India and China are not, the rest of the world is). If she doesn't appeal and can't obtain H1/O1 filing a new I-140 and waiting outside the US for it to be approved (with consular processing) might be the only option.
 
Btw, its probably futile at this point to try to adjust her status to H1/O1. If she can obtain a dual-intent visa she will have to go and get a visa stamp and re-enter to be back in status.
 
I thought she was in status until Apr 30th. So She can file I-140 and I-485 (assuming that they did fiel concurrently so not retrogressed) and then but time - literally with ~$1500!
 
She is, but isn't her husband using EAD to work one day a week? That makes him a parolee. Or has he a separate EAD based on J2?
 
Thanks for the responses guys.
nscagony: My bro-in-law has a EAD based on J2, so I guess he is in legal status till April 30th. Thanks for the advice regarding 485, we will let the lawyer know this and see what he has to say.

tipotodo: You said that it is very rare for appealed 140 to be approved. But, if we file a new 140, wouldn't they be out of status on May 1st? WE haven't received the denial notice yet, but what if the notice says that they did not receive the supporting documents, is it still hard to get that decision overturned?
 
just a quick question, is that J1 visa still valid, since she already applied for I-485? As far as I understand J1 is not dual-intent visa like H or L. I know F1 visa status gets invalidated if someone applies for AOS. So please check with an immigration attorney.
 
I was under the same impression as 'eb1a-query'. A colleague of mine is on J1- we have the same attorney and the attorney was quite sure he would lose J1 status as soon as he filed AOS...maybe you should check with your attorney on current status. I am sorry to hear about your problems and hopefully the coming week and days will bring better news.
 
This FAQ will also generally apply to J-1. It talks about an 'unofficial' USCIS policy against maintaining non-immigrant status after applying for I-485. But this apparently is not enforced, and the aliens do have the ability to change to H status before their F or J status expires.
 
Received the denial letter today. It says that I-140 Denied due to missing supporting documents. Checking with our attorney, he said that he has contacted AILA Liaison officer, and hope to hear back within a week. We are not sure what the officer will be able to accomplish though.

I mentioned that my sister's EAD was approved. Apparently, attorney mistook receipt notice for the approval notice.

What does everyone here feel, is there a good chance for appeal to be successful when they say that documents were not received? Please Gurus advice us....


Good Luck (to us, and everybody in this mess)..
 
No, we didn't receive any RFE for missing documents. I am not sure about the attorney though.

I am not very sure about appealing, we are still debating, talking with couple of attorneys to see what is the best option. I have read here that is is very rare to get the appealed decisions approved, that is the thing holding us back right now.

What should we do Gurus?
 
ludhianvi said:
No, we didn't receive any RFE for missing documents. I am not sure about the attorney though.

I am not very sure about appealing, we are still debating, talking with couple of attorneys to see what is the best option. I have read here that is is very rare to get the appealed decisions approved, that is the thing holding us back right now.

What should we do Gurus?
Click to expand...

She needs to appeal because NIW is EB2 and you will not be able to aplly I-485 for many years if your sister and her husband were born in India.
She can apply EB1 EA and then if that is approved then they can file new 485
 
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