Another GC application?

[gc6666]

My wife and I filed 485 early this year. Due to retrogression we don't know when our applications get processed.

Now my wife's company can start filing PERM for her. Most likely she will be in EB2 category.

My question is: Does it worth doing another GC application for us? Any pros and cons? What's going to happen later if both of us have two 485 applications filed (initiated by my wife and myself respectively) ?

Thanks for your suggestions!

 

[Mette]

To my mind - yes, it's absolutely worth it! We have the same situation. I'm Eb-3, my husband is Eb-2. My application was filed in 2003, his is going to be filed in a couple of days. Yes, USCIS might get confused with 2 I-485, yes, they might ask you to choose one case, who knows. But I'd say go for it. It's always more secure to have 2 cases than just one.

 

[bjorn]

Con: 2 people (you and your wife) "occupying or holding" 4 visa numbers when projections are made for the visa bulletin, meaning more retrogression and anguish for many people.

 

[Mette]

I just want to quote Madison04 and what this user wrote in our discusion about two I-485

"Just look how unfair the whole process is when someone was approved within 10 days while someone else with same qualifications have to wait for years!!! In such a system, I know for sure that, if I got the chance and didn't cut in front of others, someone else would surely do. Though I haven't done anything like that so far, if I were posmd, I would NOT feel ashamed. Sorry. But the shame is with this system, not me."

I totally agree. Just today somebody posted that he was approved in Vermont with I-485 RD of 7/2005!!! How fair is this??? Why do people with RD from 2002 and 2003 have to wait for ages even if their PD is current and this guy gets approved - in what? 4 months? Very unfair.

 

[bjorn]

It can be either due to the incredibly flawed USCIS system that we all are aware of or simply that the name check clearance for some takes months or even years while for others only takes a few days.

 

[Mette]

Lot's of people here who are stuck with namecheck got their "no records" FOIPA letters. They are not terrorists or criminals. Why is it that for some people namecheck takes only a few days and for other people it takes for ever? I, for example, have a pretty rare last name. So why is taking so long?

The problem is clearly an administrative one. They should fix the namecheck issue and clear their backlog. And do it on a "first come first serve" basis!

Then all this talk of fairness will make sense.

 

[bjorn]

So the answer is that the USCIS procedures as we all know are a complete mess.

 

[waitingdood]

Con: 2 people (you and your wife) "occupying or holding" 4 visa numbers when projections are made for the visa bulletin, meaning more retrogression and anguish for many people.

I agree with Bjorn here. There is another thread that discussed the same issue. Yes it is legal to do, but the real question is how much that is going to help yourself and how much that is going to hurt others.

You may think that you slightly increased your chance of getting your greencard sooner but if we encourage this type of application and have enough people doing so, it very well will move the cutoff dates backwards due to a falsely inflated number of visa requests. To make matters worse, if your one application with an earlier priority date gets approved but you forget to withdraw your second application, it will continue to be counted toward the numbers used for cutoff date projections.

Yes the USCIS system is flawed. But filing two applications is not making it flawless. In fact, it is feeding the flaw that has caused retrogression and make it worse.

I also wanted to point out that your wife's PERM LC will have a much later priority date than your first application, so there is no reason why her application will be approved than the one you already filed.

 

[bjorn]

In addition, once you have the I-140 approved, a second I-485 does NOT increase your chances to get the GC. If you get denied in the first I-485 application for some reason, the second application will also be denied for the same reason. The only advantage of a second application is to potentially get a much better priority date, for example if your wife is within a non-retrogressed category with an immediate visa number vs you being perhaps stuck in India EB-3 with a priority date of September 2005 and have to wait 5-6 years for a visa number to become available. So, unless you can really get a significantly better priority date, a second GC application is not making much sense.

 

[Mette]

In addition, once you have the I-140 approved, a second I-485 does NOT increase your chances to get the GC. If you get denied in the first I-485 application for some reason, the second application will also be denied for the same reason.

What are you talking about??? If, for example, I loose my job and won't be able to find another in same or similar category, my application will be denied. This doesn't mean that my husband's application as a primary applicant will get denied since he will still presumably have his job, his own approved I-140 and his I-485. I will simply become his dependant. That's the whole point of having two I-485-s based on two DIFFERENT I-140-s.

 

[bjorn]

It assumes that you are not losing your job but are getting an I-485 denial for example for having been in or entered the US illegally or having a criminal record, and stuff like that. This that make you inadmissable regardless of being primary applicant or a spouse of a primary.

 

[Mette]

It assumes that you are not losing your job but are getting an I-485 denial for example for having been in or entered the US illegally or having a criminal record, and stuff like that. This that make you inadmissable regardless of being primary applicant or a spouse of a primary.

I do not have a criminal record. I've never been out of status and never been here illegally. So the only reason for denial might be the possible loss of my job. That's where my husband's case will help. Or visa versa. A simple question of security.

 

[Mette]

.... but if we encourage this type of application and have enough people doing so...

Believe me, there are not so many families where both a husband and a wife are able to get their own EBCG.

 

[waitingdood]

Believe me, there are not so many families where both a husband and a wife are able to get their own EBCG.

You are totally wrong. There are plenty of couples who can get two LCs. This is especially true now with PERM where you can your LC approved within a few weeks.

Also, you are missing Bjorn's point. He was not debating whether you got criminal record or have been out of status. He was simply saying that filing two I485s will not get you your greencard faster in your case. We already established that it will give you extra security. However, think about it, by filing duplicate applications, you can move the cutoff dates further back, therefore longer wait, hence higher chance you lose your job before your application gets approved.

 

[TXasian]

Alternative solution - have 2 I-140s, but one set of pending I485

Cool down, folks. It is possible to change the underlying I-140 petition of an existing I-485 application, if the primary applicant loses job (before 180- days) or his/her spouse's I-140 has a priotiy date that is current while his/her I-140's PD is not current. So, it is logical to apply for I-140 for both husband/wife, and have only one I-485 application using the first/best I-140. This way, you are saving money as well as VISA cutoff dates for others

I really don't see much benefit of having second I-485 applications. But, I do see the benefits of having 2 approved I-140s. Just my opniion.

 

[Mette]

I see one huge benefit of having 2 I-485-s. If you only have one I-485 and it gets denied because of some job troubles, you spouse might not be able to file his/hers I-485 right away due to this retrogression thing. Then what? You won't be able to work on EAD - there's no EAD. You have to find another H-1B job if you still haven't been here for 6 years. Or you have to go on H-4, which is the worst possible scenario.

 

[TXasian]

Rule of Transfer of Pending I-485 Application to Second Approved Petition

Following article talks about for a pending I-485 application, how an I-140 petition can be replaced by another I-140 petition if the later one has a PD that is current. It does not cover the job security issue (if the primary applicant loses his/her job after 180 days and can not find a similar one in reasonable time, how to link dependent's approved I-140 to the existing I-485). An attorney can clarify that.
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This rule is clarified in so-called Pearson Memorandum in 2000, which basically stated that pending I-485 can be transferred to the second approved petition, no matter what kind of petition the second petition is. Assume that he/she filed EB-3 I-140 petition and I-485 was filed in 2004 before the visa number retrogressed and pending. Assume also that another immigrant petition of whatever nature, including EB-1, EB-2, or EB-4, EB-5, Family-Based petitions, is later filed and approved. In such case, he/she does not have to refile I-485 application to use the second approved petition, provided that the first petition was not revoked and the visa number is current for the second petition. In this transfer of I-485, priority date may or may not be transferred depending upon the nature of the two petitions. If the two petitions are in EB-1, EB-2, or EB-3, the priority date will also be transferred. If the two petitions include EB-1/EB-2/EB-3 and Family Petition or EB-4 or EB-5, the priority date cannot be transferred between these two petitions, even though the pending I-485 application can be transferred between these two petitions. Simply put, "transfer of I-485 between two petitions" means he/she does not have to refile I-485 application to use second petition, while the rule of priority date retention defines the transfer of the priority date among EB-1, EB-2, and EB-3.

 

[Jeta]

where did you find the rule?

Hi, TXasian and other experts in this forum,

Thank you for sharing this information. I have two approved EB I-140. However, the later approved I-140 has early PD, without I-485. I want to transfer my I-485 to this I-140 with early PD if possible. But I don't know how to do it. Could you tell me where can find more information about it?
Thanks.

Jeta

 

[bjorn]

Mette,
You are right in terms of a second application being a security in an uncertain employment situation. However, if I-485 has been pending for more than 180 days you can apply AC21 and get a new similar job, which adds more security. So in terms of job security or potential of losing the job, 2 applications are an advantage. In terms of improving the odds for I-485 approvals in a stable job situation, 2 applications are not an advantage. The question is that if you get I-485 denial because of job troubles, let's say you are unemployer for several months and unable to get a similar job or the job you got is not similar and not qualifying under AC21, are you then not already in violation and subject of inadmissability in the first place, meaning that the second application may be denied too because you violated the terms under your first application by violating AC21 or some other consition while the I-485 was pending? Just a thought.

 

[Mette]

Mette,
You are right in terms of a second application being a security in an uncertain employment situation. However, if I-485 has been pending for more than 180 days you can apply AC21 and get a new similar job, which adds more security. So in terms of job security or potential of losing the job, 2 applications are an advantage. In terms of improving the odds for I-485 approvals in a stable job situation, 2 applications are not an advantage. The question is that if you get I-485 denial because of job troubles, let's say you are unemployer for several months and unable to get a similar job or the job you got is not similar and not qualifying under AC21, are you then not already in violation and subject of inadmissability in the first place, meaning that the second application may be denied too because you violated the terms under your first application by violating AC21 or some other consition while the I-485 was pending? Just a thought.

I'm not sure if I got it right. OK, let's say you're laid off and not being able to get another job. Your I-140 is revoked, you withdraw your own I-485 but you are still is in AOS status under your spouse's case. Where's the violation?