EB1, marriage and EAD question

Y

yesven

Registered Users (C)
Hello all,
My employer plans on filing for my GC in the outstanding prof. or researcher category. Simultaneously, I was planning on filing a NIW petition (self-petition)
My fiancée just got off her F1 and moved to an OPT.
We are planning on getting married :) and filing for GC together and concurrently file I-140 and I-485 along with a work permit request. Once we get the EAD (3 months) we hope that she can work without the need for a H1-B. The idea here is that she can tell her potential employers that they don’t have to sponsor a H1 for her and that she is all set to work in the US first on her OPT and then on my EAD. With the H1 cap and related issues we think this will help her in landing a job.

Three questions:
(1) Am I correct in this? Meaning, does this sound kosher?
(2) Can she jump from the OPT to EAD without any break? and
(3) what happens if I get a RFE? Does the EAD become invalid? I’m on a H1, so I can continue to work. But does she have to stop?

Any help/views would be greatly appreciated.


yesven
 
Yes, this sounds kosher.
OPT to EAD sounds like it should not be a problem
You can't use EAD and H-1B. If you use your EAD, then H-1 is not valid. So, if you get an RFE, you should be okay regardless of whether you are on an H visa or EAD.
 
Thanks

Thanks for the reply.
I agree taht I will be ok if I get a RFE, but would my wife also be fine? Meaning, if she is only on a EAD and working, can she continue to work if I get a RFE?

Thanks
 
She can continue to work on her EAD even after you get an RFE, till a final decision is made on your I-140.

If your I-140 gets approved, all set.

If your I-140 gets denied, then she has to stop working and will become out-of-status (AND illegally present in the US without a valid I-94)right from the day your I-140 gets denied.This is a risk involved without her having a valid non-immigrant visa when a decision is made on your I-140.

Any different opinions?
 
Thanks

Thanks a lot.
Sounds like its the best I can do. If I get a RFE I suppose I'm not going to be here anyway.
Appreciate your help.
 
yesven said:
If I get a RFE I suppose I'm not going to be here anyway.
Click to expand...

Means?

You plan to apply I-140 and leave the US?

Or, are you very skeptical about your I-140 getting denied?

(Getting an RFE does not mean in anyway that I-140 is bound to get denied even after you reply to it.)
 
Oops

Sorry, but I meant a denial NOT a RFE. my bad :)

Although, I was talking to my immigration person today and he said that cases are becoming more and more difficult to get approved. He said that the days of RFE are gone and now people get denials right away!
Are you all getting the same info?

eeehhhh... should have done this years ago!
 
yesven said:
He said that the days of RFE are gone and now people get denials right away!
Click to expand...

Not entirely correct.Read the following:

AILA members questioned Mr. Yates about the potential ramifications of his May 4, 2004 Memo regarding Requests for Evidence (RFEs).Mr. Yates indicated that, if a case can never be cured of a defect, such as an I-130 petition filed by an uncle for a nephew or a niece which is a non-qualifying relationship for I-130s, the case should be denied without an RFE. However, if the case could potentially be cured of the defect through a proper RFE response, supplying a missing birth certificate, for example, the adjudicator should issue an RFE.
 
Sounds better

That sounds a lot better!

I suppose one thing to do is to get my fiancee to go on the EAD but wait for the H1 cap to open and then apply for a H1, so taht both of us will be covered if things go wrong.

Thanks much for your help. I think I'm becoming a little more comfortable with this.
 
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