DV 2017 AOS Only

[Sm1smom]

I apologize - I also confused my lawyer with this terminology. I submitted my DS-260 form. I am a 2017 selectee with a very low number so I will be eligible in October.

The advice I received from my lawyer is that if I can manage to remain employed until September, then I can file for an adjustment of status in September which will then keep me in status until I receive my work card. Do you agree with this? I am debating doing the CP process but am obviously trying to juggle my ability to find new work in the US which requires me being physically here.

I'm not quite sure I agree with your lawyer's suggestion. I wouldn't advise anyone that will become current in October to file AOS in September. Because October is the first month of the FY I feel there's a high risk of the Chicago Lockbox rejecting packages received prior to October - since they're usually focused/used to receiving packages for the current FY.

So if your case happens to be one of those that gets rejected due to early filing, you will not be able to file again as you will be out of status by then. Same thing with the suggestion that you only have to manage to remain employed until September - even if the Chicago Lockbox did not reject your package due to early filing, but your FO denies your case later on, you'll have no valid status to fall back into. My suggestion to anyone filing AOS is to ensure their current status remains valid till their AOS petition gets approved.

Now to your previous questions:

1. KCC, in the past, has taken on average, about 3 months to process the DS-260 form for a CP petition. Now having said that, you're most likely not going to get an October interview because KCC has been busy processing all the forms received before yours (assuming you're now changing to CP). You may be scheduled for a Nov interview.

2. You currently don't have an AOS application so there's nothing to withdraw and re-refile.

 

[justsomeguy]

Thanks Mom. Things are pretty amicable here with the work and they are sensitive to my visa predicament. If I were to be able to continue to work until October, would I then be able to file the adjustment of status paperwork on October 1, which would then give me a legal status to rely on?

Re: remaining in status until the process is completed, this is not an option (would require my employer to extend my employment until probably February of next year assuming the usual timeline holds). As you describe it elsewhere, the chances of approval assuming I meet the criteria (which I do) are very high. When you say that you should ensure you have a status to fall back on, is that just caution generally or something else I should be aware of?

Re: CP petition - assuming I maintain valid E3 status until the end of September, am I able to remain in the US then just fly back to Australia for the interview? If so, once I complete the interview, how long would I usually wait for my green card to be issued, assuming the process goes smoothly?

 

[EURO2014]

Thanks Mom. Things are pretty amicable here with the work and they are sensitive to my visa predicament. If I were to be able to continue to work until October, would I then be able to file the adjustment of status paperwork on October 1, which would then give me a legal status to rely on?

Re: remaining in status until the process is completed, this is not an option (would require my employer to extend my employment until probably February of next year assuming the usual timeline holds). As you describe it elsewhere, the chances of approval assuming I meet the criteria (which I do) are very high. When you say that you should ensure you have a status to fall back on, is that just caution generally or something else I should be aware of?

Re: CP petition - assuming I maintain valid E3 status until the end of September, am I able to remain in the US then just fly back to Australia for the interview? If so, once I complete the interview, how long would I usually wait for my green card to be issued, assuming the process goes smoothly?

From a I-485 processing standpoint you must be in status when filing/USCIS acknowledging receipt of your AoS filing. There is no mandatory requirement to maintain employment through to interview stage, your case will be considered "pending Adjustment of Status", however there would be nothing to fall back on in case your filings would be rejected or declined for any reason throughout the process until final approval. In your specific case, the incremental risk would probably be minor, as you are about to loose E3 status anyway. In case of deciding to file I-485, of course the parallel I-765 filing option would come specifically handy. My two cents worth on the matter... Good luck!

 

[justsomeguy]

From a I-485 processing standpoint you must be in status when filing/USCIS acknowledging receipt of your AoS filing. There is no mandatory requirement to maintain employment through to interview stage, your case will be considered "pending Adjustment of Status", however there would be nothing to fall back on in case your filings would be rejected or declined for any reason throughout the process until final approval. In your specific case, the incremental risk would probably be minor, as you are about to loose E3 status anyway. In case of deciding to file I-485, of course the parallel I-765 filing option would come specifically handy. My two cents worth on the matter... Good luck!

Thanks - so, I need to still be in status as of the NOA date which could come up to two weeks after Fedex says that they've delivered the package, right (based on the 2016 timelines I've seen). So, to be safe, I would want my employment to continue until the end of October?

 

[EURO2014]

Thanks - so, I need to still be in status as of the NOA date which could come up to two weeks after Fedex says that they've delivered the package, right (based on the 2016 timelines I've seen). So, to be safe, I would want my employment to continue until the end of October?

Subsequent to your I-485 et all filings you will receive by mail Form(s) I-797C, Notice of Action with official USCIS Receipt Date & Case Number(s). You must make sure to be able to proof legal status on or beyond that date. This is the minimum AoS filing requirement, as pointed out to you by Sm1smom earlier.

 

[Sm1smom]

Thanks Mom. Things are pretty amicable here with the work and they are sensitive to my visa predicament. If I were to be able to continue to work until October, would I then be able to file the adjustment of status paperwork on October 1, which would then give me a legal status to rely on?

Re: remaining in status until the process is completed, this is not an option (would require my employer to extend my employment until probably February of next year assuming the usual timeline holds). As you describe it elsewhere, the chances of approval assuming I meet the criteria (which I do) are very high. When you say that you should ensure you have a status to fall back on, is that just caution generally or something else I should be aware of?

Re: CP petition - assuming I maintain valid E3 status until the end of September, am I able to remain in the US then just fly back to Australia for the interview? If so, once I complete the interview, how long would I usually wait for my green card to be issued, assuming the process goes smoothly?

If your employers are willing to keep you on, not only till you're eligible to file AOS and and do file accordingly, but until USCIS formally acknowledge the receipt of your package with the issuance of your NOA, then you have a shot at AOS. You will then be in what's known as adjustment pending. Also be aware of the fact that you will have to stop working once you go out of your current status until your AOS based EAD petition gets approved - which typically takes about 3 months, more or less the same amount of processing time for a typical DV based AOS petition itself. The remain in status caution is a standard caution I give - it's something I feel people need to be aware of bearing in mind no petition is a slam dunk case.

The possibility of staying in a valid status the US until a CP interview is very slim - it really depends on when KCC schedules your CP interview for. AFAIK, you are only allowed a stay of up to 10 days following the expiration of your E3 visa. Considering the amount of time KCC needs to process the DS-260 form and the fact that yours isn't processed for a CP interview by now (it's not even technically submitted yet), you will probably not be getting an October interview.

Notifications for those getting an October interview will be going out in August by the way - considering the number of DS-260 forms KCC has already received for DV2017,

 

[Sm1smom]

Thanks - so, I need to still be in status as of the NOA date which could come up to two weeks after Fedex says that they've delivered the package, right (based on the 2016 timelines I've seen). So, to be safe, I would want my employment to continue until the end of October?

NOA receipt could be two weeks, it could be longer. There's no guarantee as to when USCIS formally accepts a petition - formal acceptance is evidenced by the issue of the NOA.

 

[justsomeguy]

NOA receipt could be two weeks, it could be longer. There's no guarantee as to when USCIS formally accepts a petition - formal acceptance is evidenced by the issue of the NOA.

Thank you. One last question, please (hopefully these questions have applicability to others!). In the event I got another job between now and filing the adjustment of status request on October, and the new company were willing to sponsor another E3 visa, would accepting the job and interviewing for the E3 visa (which is non-immigrant intent) blow up the process? I feel like the answer is yes but I appreciate your advice.

 

[Sm1smom]

Thank you. One last question, please (hopefully these questions have applicability to others!). In the event I got another job between now and filing the adjustment of status request on October, and the new company were willing to sponsor another E3 visa, would accepting the job and interviewing for the E3 visa (which is non-immigrant intent) blow up the process? I feel like the answer is yes but I appreciate your advice.

It wouldn't necessarily 'blow up the AOS process'. What you should be worried about is the possibility of another NIV being approved since you've already displayed an immigrant intent with the submission of your DS-260 form. Remember when you apply for a NIV, you're basically telling them that as at the time of applying/interviewing you truly do intend on going back home at the end of your stay.

 

[EURO2014]

Thank you. One last question, please (hopefully these questions have applicability to others!). In the event I got another job between now and filing the adjustment of status request on October, and the new company were willing to sponsor another E3 visa, would accepting the job and interviewing for the E3 visa (which is non-immigrant intent) blow up the process? I feel like the answer is yes but I appreciate your advice.

Your best and based on intended DV AoS petition most probably the only road for obtaining a new US work authorization is through a I-765 petition in conjunction with a I-485 filing. Given specific circumstances, I would seriously consider CP processing in your case. You decide. Good luck!

 

[saso]

Have you mentioned somewhere above your DV 2017 region & number? The critical path in your DV adventure, though, may ultimately turn out to be the approval of the HRR waiver, as that will in turn determine your I-485 filing date etc. At the very minimum you must be in status when filing the I-485 (otherwise you would have no basis filing AOS at that stage), preferably right through final DV interview. Very best of luck, you have your work cut out for you!

Thanks a lot.
Based on previous DV numbers, we should become current in January or February.

 

[EURO2014]

Thanks a lot.
Based on previous DV numbers, we should become current in January or February.

This is good in a way, yet depending on where you are with the HRR waiver you might not be able to submit your I-485 petition by then if you have not received formal approval of your waiver by that date. Did you have a chance to initiate the waiver petition already?

 

[justsomeguy]

It wouldn't necessarily 'blow up the AOS process'. What you should be worried about is the possibility of another NIV being approved since you've already displayed an immigrant intent with the submission of your DS-260 form. Remember when you apply for a NIV, you're basically telling them that as at the time of applying/interviewing you truly do intend on going back home at the end of your stay.

Thank you. Really taking up a lot of your time here, which I appreciate. My employer has extended my employment so I will hold a valid NIV visa until ~October. After having submitted the DS-260 BUT not having filed the AOS application, would I be able to re-enter the US on my current visa? Or is submitting the DS-260 sufficient to show immigrant intent?

 

[Sm1smom]

Thank you. Really taking up a lot of your time here, which I appreciate. My employer has extended my employment so I will hold a valid NIV visa until ~October. After having submitted the DS-260 BUT not having filed the AOS application, would I be able to re-enter the US on my current visa? Or is submitting the DS-260 sufficient to show immigrant intent?

Yes, submission of form DS-260 is a clear demonstration of an immigrant intent, I mentioned that in my post which you quoted above.

Now, regardless of whether an immigrant intent has been displayed or not, having a valid visa does not guarantee admission or re-admission back into the US. Admission is always at the discretion of the CBP regardless of a valid visa possession.

 

[atm849]

Thank you for your helpful Information. I have two questions.
1-IS the USCIS# number on OPT card same as A-number? Should I enter that number in DV 260 as an A-number?
2- (If the answer of the first question is YES.) My OPT Started in January but in May I started my PhD and canceled OPT. Should I enter the A-number?

 

[Sm1smom]

Thank you for your helpful Information. I have two questions.
1-IS the USCIS# number on OPT card same as A-number? Should I enter that number in DV 260 as an A-number?
2- (If the answer of the first question is YES.) My OPT Started in January but in May I started my PhD and canceled OPT. Should I enter the A-number?

1. Yes
2. Yes

 

[saso]

This is good in a way, yet depending on where you are with the HRR waiver you might not be able to submit your I-485 petition by then if you have not received formal approval of your waiver by that date. Did you have a chance to initiate the waiver petition already?

Will be doing that soon. Thanks a lot.

 

[EURO2014]

Will be doing that soon. Thanks a lot.

Please keep us posted on this sub forum as to relevant specifics of your HRR waiver application process (i.e. statutory basis, timelines etc.), as this might be helpful to other folks currently on J-1 with HRR, intending to file DV AoS or CP. Thanks and good luck!

 

[atm849]

Thank you for your answers. In spreadsheet (AOS Process tab) have been mentioned that receiving email from KCC could take 2 weeks to 2 months. when is the start date of this period? Does it depend on CN?

 

[Sm1smom]

Thank you for your answers. In spreadsheet (AOS Process tab) have been mentioned that receiving email from KCC could take 2 weeks to 2 months. when is the start date of this period? Does it depend on CN?

From when the DS form gets submitted regardless of the applicable CN.