convert AOS to CP: EB3 porting to EB2: need help please!

R

raj8899

Registered Users (C)
Hi,
thank you for considering my request;
this is my situation:

1] I-485 applied Dec 2007; on EB3 status;
2] priority date was Dec 2004 (substitution was used); I-140 was approved;
3] i am on AOS; have EAD & AP;
4] this is only for me; my family has all along been in India;
5] Jan 2011: new labor filed under EB2: same company, same job title;
6] Aug 2011: I-140 approved for EB2;
7] i am told that USCIS will automatically consider my AOS, and there is noo need to reapply for I-485;

Question:
a) i do not see anywhere the PD being 'ported from eb3 to eb2'; do i have to file any form?
b) this is important: the I-485 application was done only for me, since my family is in India; if i want to change to CP, do i have to file any form?
c) and, how do i add my family members in the I-485 application, since they are in India? (they are not likely to come here for atleast 6 months, since my wife's mom is not doing very well)
d) can i file for my family's GC using my EB2 I-140 approval, from India?

please let me know if you need any more details; thank you.
 
7] i am told that USCIS will automatically consider my AOS, and there is noo need to reapply for I-485;
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That is false. The old I-485 can be "interfiled" to associate it with the new I-140, but that has to be specially requested, it's not automatic. There is no specific form for it, but it has to be done in writing. Contact your company's immigration attorney for assistance on getting your I-485 interfiled to your new I-140, and to have your old priority date ported to the EB2 case.

c) and, how do i add my family members in the I-485 application, since they are in India?
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You can't while they are in India. You have to bring them to the US first*, and then the I-485 can be filed for them when your priority date is current. Or if they stay in India, they can be processed for green cards via the consulate there with "follow to join" after your own GC is approved. See http://www.immihelp.com/greencard/familybasedimmigration/following-to-join-benefits.html


*they'll need to enter with a visa that allows immigrant intent, such as L2 or H4, otherwise the I-485 will be problematic or denied due to restrictions on immigrant intent with other visas.
 
Thank You Jack,
1] i was thinking, maybe i should go back to India, and get my case changed from AOS to CP; so that i may be able to file for my family too; is this possible?
2] i did review the 'follow-to-join' provision; do i have to file the I-824 here, in the USA? can i file it myself?
3] since i do not have the GC yet, but have filed I-485, do i have to wait for my GC before i file for I-824?
4] how do i "interfile" the I-485? can i do it myself? (because it is the company lawyer who said i dont have to do anything; uscis will automatically process my 485 under the new EB2 category);

what do you think of option 1] above?

thank you,
raj.
 
If you switch to CP, you would no longer have AC21 protection; your employer lays you off and that would be the end of your green card case if they don't agree to rehire you.

You don't need to switch yourself to CP to add your family. You can keep the I-485 alive until GC approval, and then your family can follow-to-join via CP. Once your GC is approved, you don't need to stay with the same company in order for your family to benefit from follow-to-join. You must wait until your own GC is approved to file I-824 for them, otherwise if you file I-824 while your I-485 is pending, your I-485 will be cancelled and you will be switched to CP.

You can request the interfiling yourself. Search the forum and the rest of the Internet to learn how to do it, or you can hire your own attorney to do it for you. Remember to explain to the attorney that you only want the one-off task of preparing the interfiling request, you don't want them to take over your whole case which would be much more expensive.
 
Thank you Jack,
1] can i go to india, once i "interfile" the 485 and have a receipt copy?
2] i currently have EAD & AP from previous EB3 petition;do i have to apply for EAD & AP under 'interfiled' 485?
3] do i have to file the I-824 while in the USA? can i travel while the I-824 may be pending?

i am asking these questions, because my mom is not well ( she is 77, and has chronic diabetic issues); and i would like to go to india and spend about 6 months taking care of her; she has no help; i know my employer may grant me leave (obviously unpaid); so i am trying to see if i can put the paperwork together and then go to india; but if i understand right, i cannot file I-824 unless my GC is approved;

thanks,
raj
 
Jack,
based on your previous response:
if i get the case converted to CP, do i have to get any letter from my employer at the time of GC interview? Since my I-140 is approved, and PD may be current, can i not automatically get GC (subject to other requirements, ofcourse, like background checks, etc)
thanks.
 
raj8899 said:
Thank you Jack,
1] can i go to india, once i "interfile" the 485 and have a receipt copy?
2] i currently have EAD & AP from previous EB3 petition;do i have to apply for EAD & AP under 'interfiled' 485?
3] do i have to file the I-824 while in the USA? can i travel while the I-824 may be pending?
Click to expand...
You can go to India as long as you have a valid AP or H1B or L1 and return to the US before the AP/H1B/L1 expire. You don't have to wait for anything to do with interfiling, and you don't need to reapply for EAD or AP just because of interfiling; apply for renewal when they're about to expire. It's the same I-485, the only difference is that it will be linked to an EB2 I-140 instead of the original EB3 I-140.

You can file the I-824 inside or outside the US, and you can leave the US when it's pending. But filing the I-824 before GC approval will make USCIS cancel your I-485, EAD, and AP.

i am asking these questions, because my mom is not well ( she is 77, and has chronic diabetic issues); and i would like to go to india and spend about 6 months taking care of her; she has no help; i know my employer may grant me leave (obviously unpaid); so i am trying to see if i can put the paperwork together and then go to india; but if i understand right, i cannot file I-824 unless my GC is approved;
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Your I-140 is approved, so you can file I-824 anytime from this point forward. The difference is the consequence of filing it before or after GC approval:

(1) File I-824 before GC approval: Your I-485, EAD and AP are cancelled, you and your family all processed for CP together. You lose AC21 protection.
or
(2) File I-824 after GC approval: You keep all the benefits of I-485 including EAD, AP, and AC21 until GC approval. You get your GC first, your family gets theirs a few months later via CP follow-to-join.

if i get the case converted to CP, do i have to get any letter from my employer at the time of GC interview? Since my I-140 is approved, and PD may be current, can i not automatically get GC (subject to other requirements, ofcourse, like background checks, etc)
Click to expand...
You will need a letter from the employer for the CP interview, and you will have to do another background check, fingerprinting, medical, etc. for CP. And you will have to pay the CP fees. But your PD will be current once the I-485 is interfiled to EB2; you may find that your GC is approved soon after the interfile request, without an interview (most EB I-485 cases don't require an interview, but the interview is mandatory for CP). You should ensure that the interfile request mentions the priority date being current, so whoever processes the request is aware that your I-485 is ripe for approval.

If you want to spend 6 months in India, keep the I-485 alive and do that with AP (or L1 or H1B if still valid). Your family has to go with CP, but CP for yourself will just add cost and risk and time for no good reason.
 
Hey Jack,
THANK YOU very much for your detailed explanations; you are very concise and very clear; you answered my questions very very well, and i really mean it;
I know it is now for me to read them again, and thoroughly understand my options;
i may have some odd question, but first, i will make sure i digest your responses well; and take time and think what to do;

would you mind if i write how i may plan to proceed with my issue, so you can give your opinion? (i know i have already taken enough of your time).

i really do appreciate your time and patience, and also your effort in trying to understand my questions; it does tell a great deal about your integrity in helping out in these forums.

It is people like you who make such a difference in the community.

(if i can ask you a dumb question: i am a new user here; when i log on, is there a way i can go directly to the thread that i have posted, to see the replies? right now, i go and look at all posts)

God Bless you all!!
raj.
 
Jack,
i almost gave up on this ... i have been here since 1998, and my initial GC was initiated in Jan 2003; the company had severe financial issues, and the management started a new company in late 2004 with a new partner; my original labor got approved in 2007, but the company could not process I-140; so they used substitution in 2007 with the new company, and got me I-140; I am a M.Com, CA from India, & MBA from USA. I have been with the same company (management) ever since i came in 1998; i am 55 yrs old; and sometimes just want to go back.
You have been very insightful, and i thank you with all my heart!!
Wish you and family a very Happy Christmas season and Blissful New Year!
Thanks again,
raj.
 
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Hey Jack,
i just noticed that my new aproved I-140 (under EB2) mentions the earlier priority date; does this mean that the interfiling has been done?
or do i still have to send the interfiling request to apply the earlier I-485 to the new I-140?
thanks,
raj.
 
raj8899 said:
Hey Jack,
i just noticed that my new aproved I-140 (under EB2) mentions the earlier priority date; does this mean that the interfiling has been done?
or do i still have to send the interfiling request to apply the earlier I-485 to the new I-140?
thanks,
raj.
Click to expand...

There are 2 separate aspects to this: (1) port the old priority date to new I-140, and (2) Interfile the old I-485 to link it to the new I-140.

The old PD on the new I-140 shows that part (1) has been done; the lawyer probably requested it when the new I-140 was filed. But that doesn't mean part (2) has been done or even requested. Contact the company's lawyer and ask if they requested interfiling of the old I-485 onto the new I-140, and also ask if they got any confirmation of the interfiling request from USCIS. If they got such confirmation, ask them to email/mail/fax you a copy of that confirmation. Meanwhile, sign up for email updates of your I-485 at the USCIS case status site. I-485 approval may come soon after the interfiling is done, because your PD is current in EB2.
 
Jack,
I tried to search for 'interfiling' sample letters, and put together the following: Do you think this would be ok?
Thank you.

"
U.S. Citizenship & Immigration Services
Texas Service Center

REQUEST TO INTERFILE:
Approved (EB-2) I-140 petition WITH Pending I-485 Application

Applicant: XXXXXXXXXX (A# xxx xxx xxx)
Priority Date: Dec 2004

I-140 approval: SRC xx-xxx-xxxxx; dated
Pending I-485 application: SRC xx-xxx-xxxxx; dated

Dear Officer:

I am the beneficiary of the above mentioned petitions/applications.
I request you to INTERFILE my approved (EB-2) I-140 petition with the Pending I-485 application.

I make this request so that the I-485 application may be processed according to the availability of immigrant visas in the EB-2 category.

The country of chargeability in my case is INDIA. The priority date associated with my approved (EB-2) I-140 petition is December 2004. As per the U.S. Department of State current Visa Bulletins, visa processing for my priority date is CURRENT.

Therefore an immigrant visa number is immediately available for my case, and I request that my pending I-485 application to adjust status may be immediately approved.

In support of this request, please find copies of the following documents:
1. Approval Notice for (EB-2) I-140, (SRC xx-xxx-xxxxx);
2. Receipt Notice for my pending I-485, Application to Adjust Status to Permanent Residence (SRC xx-xxx-xxxxx);

Please let me know if you have any questions regarding this request.

Thank you,

Sincerely,
"
 
I am not an interfiling expert when it comes to the actual procedure of creating and sending the letter. I suggest you consult an attorney for assistance or do more research to ensure that you've included the necessary information and know exactly where to send the request.
 
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