Eb1-or I-140

S

shankyyy

Registered Users (C)
All,

My deadline to file I-140 was 12/25/07 to ensure extension of H-1B beyond 6th year. My company's attorney Fedexed the petition (paper filing) on Saturday, 12/22/07 assuring that it would reach on Monday, 12/24/07 before the deadline. However, I saw today on USCIS page that USCIS was closed on 12/24/07 via an Executive Order by President Bush ( Last month when I checked the web page, it said the holidays are only 12/25 and 01/01). Stupid attorney was not even aware of that (I am sure he won't be aware until I point it to him)

Since 12/24 was a holiday, my petition would reach USCIS earliest by 12/26/07 which is within a year of H-1B expiration. If my I-140 does not get approved within a year,

- Can I recapture H-1B time more than once? I have already recaptured it once. If I can do so again, I may have to go out of the country for a couple of weeks and return on existing H-1. This would enable me to extend the H-1 time.
- If I cannot recapture more than once, then my other option is O-1, which my employer does not sponsor. So, this is out!
- Although I have filed I-485 concurrently, I am not personally in favor of using EAD without I-140 approval. So, this is out!
- So, what other options do I have to essentially stay here beyond next December?

Please provide your feedback/thoughts.
 
Why don't you switch to EAD as soon as possible? That will stop the H-1 clock and if I-140 gets rejected you can get a new H-1 with premium processing and then try I-140 again. Seems the safest approach under these circumstances.
 
Are you saying it is possible to switch to EAD (meaning lose H-1B status), and then switch back to H-1B if I-140 is denied? I thought once you start using EAD/AP, you cannot revert to non-immigrant status. Please clarify this - any link/names of the rules pertaining to this.

thanks.
 
H1B is a dual-intent visa. You can obtain H1B after you applied for I-140/I-485, or even while I-485 is pending. You don't have to show non-immigrant intent.
 
I knew that H-1B is dual intent; just that i did not know that one could change back to H-1B after using EAD. Well, assuming I cannot recapture time more than once, I should probably switch to EAD as you suggest, and stop the H-1B time. And switch to H-1B later on, if a need arises. Got to inform the lawyer of this option.

While on EAD pending approval of I-140/I-485, can I start PERM/I-140 (or I-140 thru' NIW)?.
 
thanks. I gotta talk to my employer about possibly starting PERM, and mentioning this option. I presume, if my EB1 I-140 gets denied (hopefully not), I can link the I-485 (filed concurrent with the EB1-I-140) to the I-140 thru' PERM or NIW.
 
I've almost made up my mind that I'm gonna use EAD for second job (without 140 approval). I filed concurrently in EB1-OR category. Is it possible to convert to H1 from EAD without moving out of country if 140 is denied.
Please help..
Thanks
 
Probably not. If I-485 gets denied you are immediately out of status. And you have to be in valid status to ask for change of status. So you probably have to leave the US and pick up an H1B visa stamps. But that shouldn't be too big of a hassle as long you are not from certain countries with additional security checks (Iran etc).
 
Thanks nscagony!! What I'm assuming is that final decision on 140 is preceded by intent of denial or RFE (soft or hard)....that can provide me good enough idea about the impending decision....and then i can change to H1 from EAD....I hope it makes sense. Pls let me know if I'm wrong.
Thanks
 
Yes, thats actually what my lawyer told me regarding using EAD. You get a NOID (notice of intent to deny) and you have 2-3 weeks before you go out of status. Thats enough time to file for H1B and change of status to H1B. The only problem is that the change of status part sometimes gets denied since you are in parolee status which is slightly different than a regular temporary visa status. But again, worst case you just pick up a visa stamp at some consulate.

eb2007 said:
Thanks nscagony!! What I'm assuming is that final decision on 140 is preceded by intent of denial or RFE (soft or hard)....that can provide me good enough idea about the impending decision....and then i can change to H1 from EAD....I hope it makes sense. Pls let me know if I'm wrong.
Thanks
Click to expand...
 
Thanks nscagony!! I think I should play safe and be on J1 right now. May be I'll switch to H1 after few months and will start using EAD only after 140 approval. I hope this is a safer option even 485 is pending (EB1-OR category).....Your inputs pls...
Thanks
 
I got a copy of the petition letter my employer's attorney filed for EB1-OR. Basically, the attorney has no experience in EB1 nor in writing a decent letter! He has claimed that I qualify in FIVE categories and then goes on to talk about four of them---whatever he was thinking. I thought even the two (scientific contributions and scholarly articles) were a tough sell based on the feedback from this forum. Since the lawyer was confident, I thought he was experienced in writing good letters and converting decent cases into successes. Unfortunately, for me the lawyer has turned out to be a dud! I could have written a better petition letter. And, I have no clue why my company's visa officer is still with his guy.

Do you think I should openly tell my employer's visa officer that the lawyer is not experienced in EB1 cases, and he is going to screw up my case, and my employment?. I am not allowed to correspond with the lawyer directly but only thru' the visa officer. And, I'll have to persuade my employer that I switch to EAD and halt my H-1 time from ticking. And also, start my NIW. AND, start looking for jobs in India.
 
You should certainly document your feeling about the lawyer before a decision or RFE. If you do it after RFE they will think you are pissed off. Also, dont just 'tell' the visa officer - email him. That leaves a paper trail to be responded. May be the lawyer is a friend or cousin of the VO and reason why he is retained.
 
shankyyy, did you look into O-1 visas? If you employer insists on keeping you on a non-immigrant status, O-1 is non-immigrant and dual intent. You could use the same letters you used for EB1-OR, plus it stops your H-1 clock (and makes the H-1 clock pretty much irrelevant since there are no limits on O-1).
 
Yes, I know abt O-1 visa but my employer does not sponsor them (i doubt whether they even know abt it...even if they knew, I'm not sure whether the attorney has any experience!). But I'll bring it up to them if my I-140 gets denied...Maybe I'll have to bring it up to the visa officer now when I mention abt the bad cover letter! She'll just say not to worry abt it. (As 'nightsman' referred, a colleague mentioned to me that the attorney keeps the visa officer 'happy'!! whatever that means)

- In fact, I am thinking if I find another employer who'll do O-1, I'll jump there. The only catch is I'll have to repay my current employer all the H-1 and GC fees (~10-15K)

I have some questions on filing NIW in parallel
- If I file NIW in parallel, will I ever need a letter from my employer (verification letter, etc)? I am thinking I'll file NIW without informing the employer, as they may discourage me from doing it, and if I do it against their wishes, they may blame me if EB1 is denied later (even though there is no link between NIW and EB1). On the other hand, if I do not inform them, and later I find I need a letter, I'm screwed.
- My current job is primarily commercial (cannot work in government funded projects until i get gc). Will this be a problem for NIW?
- If my EB1 gets denied, and my NIW gets approved later, would it be possible to link my NIW to the I-485 concurrently filed with EB1? or does the I-485 become invalid the moment EB1 is denied?
- current update says about 9 months processing time for NIW but I see people waiting even longer. also, when they start processing cases filed in july 07, things will slow down due to the big surge that month, and i may not get an answer before December 08 (when my H-1 expires). So, is it really worth to spend money on an attorney and file NIW in parallel?
 
- In fact, I am thinking if I find another employer who'll do O-1, I'll jump there. The only catch is I'll have to repay my current employer all the H-1 and GC fees (~10-15K)

Usually you will have to pay only if you leave AFTER approval.

- If I file NIW in parallel, will I ever need a letter from my employer (verification letter, etc)?
NOT NECESSARY
I am thinking I'll file NIW without informing the employer, as they may discourage me from doing it, and if I do it against their wishes, they may blame me if EB1 is denied later (even though there is no link between NIW and EB1). On the other hand, if I do not inform them, and later I find I need a letter, I'm screwed.
DONT INFORM UNTIL YOU HAVE TO. You can always inform later and say you want to file and that why you need letter. You have to inform only before they file any more immig documents for you.
- My current job is primarily commercial (cannot work in government funded projects until i get gc). Will this be a problem for NIW?

NO - if you think about it that how everyone is till they get GC? it will be a catch22!

- If my EB1 gets denied, and my NIW gets approved later, would it be possible to link my NIW to the I-485
concurrently filed with EB1? or does the I-485 become invalid the moment EB1 is denied?

Theoretically NO relinking, although some have been lucky.

- current update says about 9 months processing time for NIW but I see people waiting even longer. also, when they start processing cases filed in july 07, things will slow down due to the big surge that month, and i may not get an answer before December 08 (when my H-1 expires). So, is it really worth to spend money on an attorney and file NIW in parallel?[/QUOTE]

FILE yourself. Only costs ~ $500.
 
thanks, nightsman.

i was reading the agreement i signed. it says something like, '...legal fees and expenses incurred in obtaining my PR, and if I voluntarily terminate my employment within 12/24 months of receipt of permanent residency, I will reimburse on a pro-rated basis'. I guess I can legally argue that I am quitting before approval of PR and thus not required to pay.

similar agreement for H-1, tho' my guess is the costs for H-1B may not be much.

i am still thinking whether I should move to EAD as soon as I get it, and then if I get another job, go out of the country and come back on a new visa.

btw, is O-1 also dual intent like H-1?
 
You must log in or register to reply here.
Top