can I file 485 while on B1/B2 visa?

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hellomahesh

Registered Users (C)
My employment based EB3 GC was filed a decade back and its dates got current last month. I have worked in US on H1-B visa status for 6 years and left to India 5 years back. My employer who filed my GC is open to hire me again in US.

Since my priority date got current, can I visit on B1 visa and apply for change of status and file 485 & EAD?

The other option is I get a H1-B visa from the employer and get in US and then file for same.

I m an IT professional and hold B1/B2 visa with up to 10 years validity.

Thanks in adv.
 
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hellomahesh said:
My employment based EB3 GC was filed a decade back and its dates got current last month. I have worked in US on H1-B visa status for 6 years and left to India 5 years back. My employer who filed my GC is open to hire me again in US.

Since my priority date got current, can I visit on B1 visa and apply for change of status and file 485 & EAD?
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First of all, you're likely to be refused entry with a B1 because of the pending GC process. Second, if you manage to enter, you risk having your I-485 denied for having immigrant intent (USCIS is lenient on the immigrant intent issue for immediate relatives of US citizens, but you aren't in that category).

Instead of (or in addition to) pursuing an H1B to reenter, you should try to get an immigrant visa through the consulate. If consular processing was selected on the I-140, the consulate should be contacting you soon regarding the interview and other formalities (but your employer should still inquire with USCIS about your case, since the I-140 has been collecting dust for so many years and it may continue to collect dust if somebody doesn't trigger USCIS to look it up).

If adjustment of status was selected on the I-140, an I-824 needs to be filed to switch to consular processing in India.

After approval of the immigrant visa at the consulate, you'll become a permanent resident the first day you enter the US with it.
 
Thank you both for responses.

Consular processing was opted while I-140 was filed. I haven't got any notice/letter from the consulate yet.

In case I wait and get consular processing... Do I need to be hired by the same employer who filed my I-140? Or can I get hired by another employer as well? (since I have an better opportunity with another employer who rewards well).

Thanks in advance.
 
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You need to work for the same sponsoring employer. AC21 doesn't apply to consular processing.

When the I-140 was filed, did it specify your same address where you are living now? If not, something needs to be done to notify USCIS/NVC/consulate about your new address (I'm not sure what the process is to do that, talk to your employer and their lawyers). And regardless of the address change or not, you and/or your employer needs to inquire about the I-140 because it has been collecting dust for so long and may be forgotten if you don't push USCIS to do something about it.
 
Need help

Hi,
My case is same; My 140 is approved and after completion of 6 yrs on H1B am back. My employer promised me to keep my status alive. Could you please let me know what are the possibilities in order to file for I-485 once dates are current!!?
Thanks in advance.
 
Jackolantern said:
You need to work for the same sponsoring employer. AC21 doesn't apply to consular processing.

When the I-140 was filed, did it specify your same address where you are living now? If not, something needs to be done to notify USCIS/NVC/consulate about your new address (I'm not sure what the process is to do that, talk to your employer and their lawyers). And regardless of the address change or not, you and/or your employer needs to inquire about the I-140 because it has been collecting dust for so long and may be forgotten if you don't push USCIS to do something about it.
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Jackolantern,
My I-140 was approved in Mar 2008. I m just awaiting consular letter now. Do you know where I need to contact & inquire further?
 
bigsurhwy1 said:
Hi,
My case is same; My 140 is approved and after completion of 6 yrs on H1B am back.
Click to expand...
How long have you been outside the US?

My employer promised me to keep my status alive. Could you please let me know what are the possibilities in order to file for I-485 once dates are current!!?
Click to expand...
To file I-485 you'll need to find a way to get back into the US, other than with a B1/B2 visa. After spending 1 year outside the US you'll become eligible for H1B again. After reentering with H1B, you can file the I-485.

If you're not able to enter the US to file the I-485, you'll need to pursue the GC via consular processing. If CP was not selected on the I-140, I-824 will need to be filed to move it to the consulate.
 
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hellomahesh said:
Jackolantern,
My I-140 was approved in Mar 2008. I m just awaiting consular letter now. Do you know where I need to contact & inquire further?
Click to expand...

Talk to your company and their lawyers. Also tell the consulate that you have an approved I-140 and a current priority date and ask how to proceed.
 
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