Am in trouble- please help

[jaberwocky]

Hello,
Am in trouble . Any input is appreciated.

Filed EB1 and EB2 in Nov 2003. After a bunch of RFE, EB1 I 140 approved in Sept 2005. We Celebrated!!(our H1 had expired by Oct 2004 and we were working on EAD). We actually were to apply for PERM(transitioned from fellowship to staff in a premier academic institute) but did not as the EB1 was approved.
RUDE SHOCK on Nov 14 when INS wrote (INS dated it nov 4)that the petition was approved in error and according to them, I did not fullfill the criteria for EB1 as yet. So they sent an"intent to revoke"( BTW, remember the perm was not applied!thx to their "mistake" )
So hurried and filed for perm (Nov 21) as all the ads had already gone through. Being from a well recognised institute,they were able to contact the local senator whos office inturn contacted Nebraska. They said- sorry, we have untill Dec 4 to respond to their intent to revoke.
Of note- all our documents r in order and not a word is incorrect.
So we are in process of responding back.
Any suggestions would be greatly appreciated. Our EB2(NIW-no labor required) is still pending.
Jaberwocky

 

[hadron]

Which I140 was your I485 filed with ?

(if it was concurrently filed with the EB-1 rather than the EB-2 NIW you are indeed in deep s()*. In that case, your status will lapse on with the denial of the I140)

 

[jaberwocky]

Thanks Hardon for the quick reply.
Yes- u guessed right. The I140 and 485 are with the EB1 . Lawyer also intends filing Schedule A (between PERM and EB1- Employer/Institute saying I need to stay back as EB1 criteria) which does not actually fall under retrogression. Any experience with Schedule A? or any other suggestions?
Thx,
Jaberwocky

 

[hadron]

Here is your problem. From what I understand, you allowed your H1b (or other non-immigrant working visa) status lapse. 99% of the time, that is not a problem, because they only rarely go back and disapprove already approved I140s.

The problem now is that the moment your I140 is approved, your I485 disappears as if it never existed --> your EAD and AP are invalid and you don't have a legal status (which might cause you to accrue unlawful presence).

Are you from retrogression land ?

- If not, file another I485 tied to your pending I140NIW. That way you secure your legal status after your current I485 makes 'poof' and disappears into a cloud of white smoke. You will have to stop working once they revoke your EAD and wait for the EAD from the new I485 to go through.
- If yes, file an I129 for an O1 or and H1b in premium processing. Leave the country before dec 4th. Re-enter on the O1 and resume your work.

USCIS (and NSC in particular) allow a I485 to be transferred from one APPROVED I140 to another APPROVED I140. If your original I140 is denied, the concurrently filed I485 is automatically denied with it (no, they don't send you an RFE asking 'do you have any other I140s pending ?', they just deny it).


Get the opinion of (another) reputable immigration attorney. You are in a dangerous situation which might seriously screw up your chances to immigrate to the US.

 

[jaberwocky]

Thx again for your input.
Yes- we r from retrogression land (india).

1. O1 in the past did not work for us.
2. H1 is finished(Oct 2004)- cannot even apply for xtension as I140s were not filed 1 yr prior to expiry of H1.
3. cannot leave country before Dec 4 as it is not advisable(per lawyer-"high profile lawyer") cos we have an intent to revoke pending.
4. Correct me if I am wrong but if my I140 is denied my I485 becomes null and void BUT I have 180 days to leave the country.ie. i cannot obviously disappear from the country the minute the I140 is denied.

I guess my option is- if the I140 is denied, leave the country for 1 yr and return back on H1 after a yr.

Why do u say that "You are in a dangerous situation which might seriously screw up your chances to immigrate to the US"??if tghe 140 is denied, I can leave the country in a month- still keeping with the 180 day regulation.
FYI- I am married and have 2 kids. Need planning ahead of time.Would not want to(and have never in the past) do anything"unlawful".

Also, whats u r idea about schedule A?
Thanks (in this time of need)!
Jaberwocky

 

[hadron]

> 1. O1 in the past did not work for us.

Well, the criteria are the same as for EB-1 EA, so in a way no suprise that they denied the I140 after they denied an O1 in the past.

> 2. H1 is finished(Oct 2004)- cannot even apply for xtension as
> I140s were not filed 1 yr prior to expiry of H1.

Bummer.

> 3. cannot leave country before Dec 4 as it is not advisable(per lawyer-
> "high profile lawyer") cos we have an intent to revoke pending.

Well, I guess that is why he is a lawyer an I am a doctor.

> 4. Correct me if I am wrong but if my I140 is denied my I485 becomes
> null and void BUT I have 180 days to leave the country.ie. i
> cannot obviously disappear from the country the minute the I140 is denied.

Well, you have 180 days until your immigration prospects are FUBAR. But the moment your I140 is denied you are out of status. The problem is that for a new I485 you have to show that you had lawful status throughout, and this is where staying here after a denied I485 can bite you. But I don't profess to be an expert on this, just be sure that you have the best counsel money can buy so they don't tell you anything bogus.

> I guess my option is- if the I140 is denied, leave the country for 1 yr
> and return back on H1 after a yr.

A lot of people discount that option. You don't necessarily have to go to india. For H1b purposes, a year spent doing research up in canada counts.

> Also, whats u r idea about schedule A?

I thought it only applies to nurses and physical therapists. Is there a category physicians can file for ?

 

[posmd]

Here is the problem with the going out and returning in 1 yr on new H1b. If the Eb1 140 is denied then you would have fallen out of status from what i know, once that is the case you will be barred from getting the new H1b for unlawful presence. Feel free to correct me if my interpretation is wrong guys.
Hadron, I was surprised to hear you say that NSC especially does allow transfer of 485 from one approved 140 to another approved 140 petition. I face this specific situation with an approved NIW 140 and a pending labour albeit with a much earlier Priority date, since I am from retrogression land, i had hoped to substitute labour based 140 for the NIW140 but was advised by my attorney (high priced not sure if high powered) that NSC as opposed to other service centers has their own rule on this and do not allow that.

 

[hadron]

> then you would have fallen out of status from what i know, once that
> is the case you will be barred from getting the new H1b for unlawful
> presence. Feel free to correct me if my interpretation is wrong guys.

Two different things.

'Out of status' just means overstayed a visa etc. You are barred from changing to a different non-immigrant visa and you are barred from filing a new I485 if you haven't maintained uninterrrupted valid status. You are not blocked from applying for re-admission as non-immigrant or immigrant.

'Unlawful presence' is what you have to be afraid of. This kicks in the moment USCIS or an immigration judge makes a determination that you are out of status. From that moment on, you accrue 'unlawful presence' which triggers the 3 and 10 year re-admission bans (unlawful presence automatically starts if you work without a valid EAD, e.g. after your I485 has been denied).


> that NSC as opposed to other service centers has their own rule on this and do not allow that

They don't, however recently a close friend of mine managed to armwrestle them into accepting a transfer from a different service center and a different I140 (both things NSC supposedly 'doesn't do')