EB I-485, marriage to US Citizen, and EAD

[s_u_r]

Hello everyone,

I was wondering if anyone can shed some light on my situation. I have an H1-B (six years expiring in April 2005), was approved for an employment-based green card, and filed my I-485 in August 2002 (I guess I am one of the unlucky ones still waiting). Got FP almost instantaneously, and never heard from VSC until January 2004. They sent me an RFE asking for employment letters again, plus tax forms of last few years. Sent it in right away, got a FP2 notice in Augist and did FP2 on September 11. An inquiry to USCIS on Sep 30 2004, resulted in a note Dated Oct 12 that said nothing useful ("case pending Service consideration"). While all this was happening, I also got married to a US citizen.

I am in the process of leaving my current employer (the one who sponsored me in 2002) and want to start my new job in January. Is my best option to file for and get an EAD (assuming no problems) and wait patiently for the I-485 approval? Would doing so affect me at a later stage (since I wold have changed employers before my I-485 was approved)?

If I file another I-130/I-485 based on my marriage to a US citizen, would that automatically cancel my previous application (or jeopardize it in any way)?

What is the best way to proceed, according to people's experiences here?

Thanks a lot for any responses!

s_u_r

 

[pralay]

I am in the process of leaving my current employer (the one who sponsored me in 2002) and want to start my new job in January. Is my best option to file for and get an EAD (assuming no problems) and wait patiently for the I-485 approval? Would doing so affect me at a later stage (since I wold have changed employers before my I-485 was approved)?

Yes, you can definitely leave your employer using AC21, provided your new job is similar.

IIf I file another I-130/I-485 based on my marriage to a US citizen, would that automatically cancel my previous application (or jeopardize it in any way)?

No, it does not cancel previous 485.

What is the best way to proceed, according to people's experiences here?

I would try to put my best effort to get current EB I485 approved (by enquiry, contacting sanators) before filing new family based AOS. The family based AOS is not faster either (in fact it's slower). If you apply FB AOS today and tomorrow your EB AOS case get approved, it will waste of money.

 

[EAC04]

Similar Situation

s_u_r,

I am in similar situation, only my RD is 1/14/04

My lawyers (large, reputable firm) told me that one cannot have two I-485 applications outstanding at the same time. If you file family-based I-485, it will take a long time.

In your situation, I would use AC21 and stay with the current course. If USCIS issues an intent to deny, then file family-based application.

 

[pralay]

My lawyers (large, reputable firm) told me that one cannot have two I-485 applications outstanding at the same time.

Not true. It's not adviceable to to file two 485 (and does not makes sense most of the times). But if underlying cases are different (for example, two different I-140 from two different companies), there is no restriction of filing two I-485s at at the time. The only thing applicant needs to remember (to avoid confusion) is to fill up the A# number box in 2nd I485 application with the A# obtained from first I485 application.

 

[s_u_r]

Well, I have also been advised by lawyers tha one cannot have two I-485's pending. But I was told that I can have my US citizen spouce file the I-130 and ask for it to be joined to the I-485 in process. That would also put me on a faster track to naturalization, I suppose, as well as allow me to change employers without worrying so much about it.

Sounds about right? Any comments?

 

[pralay]

Well, I have also been advised by lawyers tha one cannot have two I-485's pending. But I was told that I can have my US citizen spouce file the I-130 and ask for it to be joined to the I-485 in process. That would also put me on a faster track to naturalization, I suppose, as well as allow me to change employers without worrying so much about it.

Sounds about right? Any comments?

If I and other mentioned before, FB I485 is slower than EB I485. So, even if can "join" (not sure whether you can do it) your approved I-130 with your existing I485, still it's not going to provide you any extra horse-power for your existing case. On the contrary, it can confuse adjucator giving an impression that you want to move your existing I-485 from EB category to FB category (by withdraw underlying I-140 and replacing it with I-130). That would be conter-productive, I guess.

 

[s_u_r]

If I and other mentioned before, FB I485 is slower than EB I485. So, even if can "join" (not sure whether you can do it) your approved I-130 with your existing I485, still it's not going to provide you any extra horse-power for your existing case. On the contrary, it can confuse adjucator giving an impression that you want to move your existing I-485 from EB category to FB category (by withdraw underlying I-140 and replacing it with I-130). That would be conter-productive, I guess.

I agree that this may be the case. I guess I'm not so concerned about the wait (I can get an EAD while waiting) as I am about the change of employers putting my I-485/future naturalization in jeopardy. Also, I would like to conirm that submitting the I-130 and linking it to an existing I-485 is for real (the lwayers told me it can be done, but I haven't been able to find info about it). So the question is, does such procedure really even exist? Is it just a freeform letter you sent to USCIS?

 

[hadron]

It is possible to link a second I140 to an existing concurrently filed case, I haven't heard about family based cases.

I would sit tight and wait for the imminent approval of your employment based AOS.

As a safety, have your wife file an I130. So in case you run into some AC21 applicability issues or trouble with your former employer you have another arrow to shoot.

As things are now, it is actually 'more legal' to change your employer before GC approval. This way you can use AC21. Once your GC is approved the applicability of AC21 is not that clear and people are beeing advised by their attorneys to stick with the sponsoring employer for varying amounts of time (6-12mo).

 

[s_u_r]

It is possible to link a second I140 to an existing concurrently filed case, I haven't heard about family based cases.

I would sit tight and wait for the imminent approval of your employment based AOS.

As a safety, have your wife file an I130. So in case you run into some AC21 applicability issues or trouble with your former employer you have another arrow to shoot.

hadron, thanks for sharing this info. How is a second I-140 linked to an existing case (I-485)? If you can provide some details maybe I can dig up the procedure for linking an I-130 to an existing I-485 as well. Thanks.

 

[hadron]

> How is a second I-140 linked to an existing case (I-485)?

Freeform letter fom attorney (or from you, if you have one of these jackals that charge you for every email they answer).

And apparently you CAN have two I485s at the same time. But as your EB case is so far along, I wouldn't introduce a potential source of confusion by filing another one.

 

[s_u_r]

hadron,

Where did you see that one can have two I-485's filed concurrently? At any rate, I thought of additional scenarios, don't know if they make much sense:

1. Is there any way -- other than calling and starting an inquiry -- to find out what is making my application take so long? I inquired once, and received a useless letter stating that "our computer systems show that your petition/application is still pending Service consideration, please allow 60 to 90 days to hear from this office." I read all this stuff about the name check from FBI taking a while for some people, is it worth it trying to get some info from the FBI on that without knowing for sure that it IS the name check that's slowing me down?

2. Assuming everything goes fine and I do get my EB I-485 approved within a short time. That will make me an EB permanent resident. Is it possible to convert myself to family based after that, so that I can be on the fast track to naturalization?

Thanks.

 

[EAC04]

No need to convert

Once a Green Card holder, there is no need to officially convert to family-based. After three years, you can apply for citizenship on the basis of marriage by showing the marriage certificate.

 

[EAC04]

Lawyer response

Here is the response my lawyer gave today on this issue:

"There would be no benefit at this time to asking your wife to petition for the I-130 as you would need to withdraw the I-485 currently pending and re-file another. Moreover the I-130 petitions of this type are not filed with the Vermont Service Center but with the District office with jurisdiction over where you live."



Apparently, if you file the I-130 with the local district office, it is forwarded to the National benefit Center where the processing date is 11/1/2001

 

[hadron]

> There would be no benefit at this time to asking your wife to petition
> for the I-130 as you would need to withdraw the I-485 currently
> pending and re-file another.

You can definitely file another I130 without withdrawing the pending I485. You can file as many petitions as you feel like. Whether it is advisable to concurrently file I130/I485 is another question.

The information that you can have several EB I485's if they are filed concurrently is from my lawyer (who in turn was told about this at an AILA liasion meeting with the respective regional center)
I was told the same information by an officer at the VSC walkup window (while it still existed).

How to move your EB case along ? I don't know, if your congressman makes an inquiry, the file goes from the processing queue to the congressional relations office. They try to figure out whats going on, send a reply to the congressmans office and return the file to the processing queue (or just put a post-it note on it and forget it on their desk like in my wifes case).

Sit tight.