"Employment Base Process" or "DV"

[toughcase]

My wife just received notice from department of labor indicates her Labor Certificate is approved (she was one of those cases under “PAPER PROCESS” and she has been waiting for this notice for 4 years) and she doesn’t require interview for her employment base Green card process; however, as her lawyer suggests, the process for her to get the green card will take about six months and will cost her another $3000+ plus some financial documents from her company.

On the other hand, she also won the DV 2008 (AS00001xxx) and we were planning to do the CP process. Her lawyer told her that her interview date should be around October, which is about three months away.

For sure we will not have enough money to do both process; therefore, we need to choice one of them. In terms of possibility, we believe that employment base will have higher chance of getting it, since no one can know for sure if DV will be approved. But, in terms of wait time and cost, DV seems much better than employment base process especially when my wife cannot stand the stress from her company any longer.

Anyway, I was wondering if choosing DV will be better than employment base process. Any suggestion?

 

[mia22]

I am in the same situation as your wife. My husband and I are doing both, we applied for the I-485 via employment and are doing CP for the DV. It all depends what your wife’s PD date is for the employment adjustment. Just to apply for I-485 via employment can take until October. Since all visa categories for employment are Unavailable for August, and will probably stay unavailable until October 2008. Unless, she has all the documents ready to apply under July visa bulletin in which all employment categories were current. Does she have an approved I-140? Then, the I-485 can take anywhere from 6 months to several years. There are cases where people have been stuck due to administrative processing. If this gets to be a long time for you, your wife continues to work for the nasty employer.

The money can be made in the future if you get a green card. Money is easily replaced. However, years of waiting cannot be brought back.

The DV CP can take a day and you and your wife can have a green card. Plus, you are so lucky. You have been given plan A and B to obtain a green card. You never know what might happen. Do not lose any of these opportunities just because short financial reasons. Having two plans is great.

Good luck.

 

[rcling26]

Tough situation

My wife just received notice from department of labor indicates her Labor Certificate is approved (she was one of those cases under “PAPER PROCESS” and she has been waiting for this notice for 4 years) and she doesn’t require interview for her employment base Green card process; however, as her lawyer suggests, the process for her to get the green card will take about six months and will cost her another $3000+ plus some financial documents from her company.

On the other hand, she also won the DV 2008 (AS00001xxx) and we were planning to do the CP process. Her lawyer told her that her interview date should be around October, which is about three months away.

For sure we will not have enough money to do both process; therefore, we need to choice one of them. In terms of possibility, we believe that employment base will have higher chance of getting it, since no one can know for sure if DV will be approved. But, in terms of wait time and cost, DV seems much better than employment base process especially when my wife cannot stand the stress from her company any longer.

Anyway, I was wondering if choosing DV will be better than employment base process. Any suggestion?

First of all, one thing, nothing in life is sure !!! Therefore I would not set you rmind to get your greencard through employment within 6 months. My roommate got his after 1 year after he got his labour approval. Anyway, let's talk about your DV or employment greencard application. I was in the same situation. Here are the pro's for DV:

- Interview will normally be smooth, no hard questions asked, unless you lied or have suspicious background
- You can switch job immediately after your greencard
- Costs are actually the same, they require the same documentation. Hence no company involvement
- Your number is very low, therefore you can apply early
- All employment based greencard applications are current, therefore your application might take even longer

Here are the pro's for employment:

- It normally is a safer option, if you stay with the company until you get your greencard. DV MUST be obtained by 9/31/08
- Do not forget if you do CP with DV and you get rejected, you can not come back to US. The decision is final, therefore you can not object against it
- Though the new immigration bill is cancelled, you never know if they can cel DV lottery

And do not forget for employment based greencard application that you have to file before Aug 17 if you want to go for a greencard this fiscal year.

R.

I try to answer your question as correct and complete, through my experiences. I can not be hold responsible for the information I have given.

 

[toughcase]

mia22 and rcling26,

Thank you both for your responses. My wife just got the notice from Department of labor after waiting for 4 years and she has not submit her I-140 and I-485 yet, so I don't think she will be able to complete all required documents on time. According to her lawyer, she need to respond to the notice from Department of labor right away or she will not be able to submit on time. This is the part I am not quite understand. Since we received letter from KCC we were not expecting her employment base green card because her labor cert application was rejected at one moment. Her lawyer sent a letter to appeal the case, but that was one year age.

mia22 and rcling26,

Base on what you said, what will be the correct steps to do at this moment if we decide to go both ways. Can we submit both I-140 and I-485 at the same time since her labor cert was pending for so long? Thanks!

 

[rcling26]

No 2 pending I485

mia22 and rcling26,

Thank you both for your responses. My wife just got the notice from Department of labor after waiting for 4 years and she has not submit her I-140 and I-485 yet, so I don't think she will be able to complete all required documents on time. According to her lawyer, she need to respond to the notice from Department of labor right away or she will not be able to submit on time. This is the part I am not quite understand. Since we received letter from KCC we were not expecting her employment base green card because her labor cert application was rejected at one moment. Her lawyer sent a letter to appeal the case, but that was one year age.

mia22 and rcling26,

Base on what you said, what will be the correct steps to do at this moment if we decide to go both ways. Can we submit both I-140 and I-485 at the same time since her labor cert was pending for so long? Thanks!

You can not do DV and employment application both ways, according to my laywer. And believe me, they know what they are saying as they are the largest immigration law office in the US. You can submit both I140 and I485 of employment greencard based application (not sure), but they will handle the I140 first and then I485.

 

[toughcase]

You can not do DV and employment application both ways, according to my laywer. And believe me, they know what they are saying as they are the largest immigration law office in the US. You can submit both I140 and I485 of employment greencard based application (not sure), but they will handle the I140 first and then I485.

Correct me if I am wrong, so I can only choose one of them to proceed? I thought I just heard from mia22 that she is doing both. I am getting a little bit confused now...

So, what did you choose at that time and why did you choose it? If you don't mind me ask.

 

[rcling26]

Investigation

Correct me if I am wrong, so I can only choose one of them to proceed? I thought I just heard from mia22 that she is doing both. I am getting a little bit confused now...

So, what did you choose at that time and why did you choose it? If you don't mind me ask.

I think I am correct, since my lawyer says so. Because practically you are submitting 2 I485 forms, and USCIS will probably cancel one. Please ask around or your lawyer. I choose for DV lottery and I did it under my my advice of my laywer.

In the middle of the process you can however cancel DV and then go for employment based greencard application or vice versa.

 

[mia22]

I think that rcling26 is a bit confused about the situation. He has given some inaccurate information in his posts.

Yes, you cannot file two I-485 in the USA. However, that is not what you are doing. You will have the I-485 adjustment of status in the US and Consular Processing for DV in your home country. With CP, you are applying for an immigrant visa and not for adjustment of status. Even if your DV is refused, you can come back home. Your wife is I assume on H1B, which is dual intent visa. So, no worries there.

Information given by rcling26 is not accurate. You have a CP for DV and adjustment of status with employment.

If your wife has all the information and documentation needed to apply for the I-485, she can file the 485 and 140 concurrently until August 17. If she cannot get all things done before this date, she will not be able to apply until October 2008 or later.

Good luck.

Please consulate a lawyer if you wish, I did. And my company’s lawyer is in New York and one of the best lawyers in the USA. This is what they advised me. I am just sharing some free advise.

 

[rcling26]

Ask a lawyer

Since your greencard is very important, I would advice you to ask a lawyer. Seems like we have 2 conflicting stories. The most important thing is that you get the greencard.

R.

 

[kanta80]

I agree with, mia22. Green card through DV Consular Processing and EB category are two independent processes. One does not affect another. If you guys are in valid status in U.S., even if they deny your DV visa, you can still come back with your existing visa which I assume is H1B and your EB process would not be affected by it.

 

[LucyMO]

If you guys are in valid status in U.S., even if they deny your DV visa, you can still come back with your existing visa which I assume is H1B and your EB process would not be affected by it.

kanta 80 is right.

and yes, you can have two AOS processes at the same time. At the interview of whichever happens first, you will be offered to cancel the other one.

 

[toughcase]

First of all, thanks for the advices from all of you. Currently, both me and my wife are under H1-B in the US.

If your wife has all the information and documentation needed to apply for the I-485, she can file the 485 and 140 concurrently until August 17. If she cannot get all things done before this date, she will not be able to apply until October 2008 or later.

mia22,

Two questions:
1.) Does I-140 require company's financial documents and president's signature?
2.) Once I-140 approved, how long does I-485 usually take to get approved?

Thanks.

The most important thing is that you get the greencard.

R.

rcling,

I agree with you too.

I agree with, mia22. Green card through DV Consular Processing and EB category are two independent processes. One does not affect another. If you guys are in valid status in U.S., even if they deny your DV visa, you can still come back with your existing visa which I assume is H1B and your EB process would not be affected by it.

Hi Kanta80,

Thanks for the clearification. I think I will discuss this with my wife and start to prepare the required documents from her company.

kanta 80 is right.

and yes, you can have two AOS processes at the same time. At the interview of whichever happens first, you will be offered to cancel the other one.

LucyMO,

Thanks for your info, as always.

 

[mia22]

Two questions:
1.) Does I-140 require company's financial documents and president's signature?
2.) Once I-140 approved, how long does I-485 usually take to get approved?

Is your wife EB2 or EB3?

Many documents are needed for the I-140 and 485. For the 140, labor certification is needed and a proof that the worker can fill the job requirements- diplomas, recommendation letters and etc. Also, proof that the company can pay the worker is needed. For the 485, many documents are needed, birth certificates, medicals, divorce certificates, marriage certificates, military certificates, employment letter, bank statements, and others.

No one can predict how fast the 485 will be approved. It can be anywhere form 6 months to several years. I assume that you wife has a pretty good priority date because she applied long time ago for the labor certification. So, the dates for 140 and 485 concurrent filing are open only until August 17. After that, she will have to wait until October when the new fiscal year starts.

 

[toughcase]

mia22,

Is your wife EB2 or EB3?

She is EB3; however, she start her application from 2003.

Many documents are needed for the I-140 and 485. For the 140, labor certification is needed and a proof that the worker can fill the job requirements- diplomas, recommendation letters and etc. Also, proof that the company can pay the worker is needed. For the 485, many documents are needed, birth certificates, medicals, divorce certificates, marriage certificates, military certificates, employment letter, bank statements, and others.

For I-140, my wife had 6 years work experience prior to this job and she has her AA degree from College in US, so she should be able to provide proof for that. Regarding to company financial document, this might be a problem. Since it took a while for her boss to sign her H1-B extension application(after working for him almost 6 years), I don't know what will it take for him to give and sign those financial documents.

No one can predict how fast the 485 will be approved. It can be anywhere form 6 months to several years. I assume that you wife has a pretty good priority date because she applied long time ago for the labor certification. So, the dates for 140 and 485 concurrent filing are open only until August 17. After that, she will have to wait until October when the new fiscal year starts.

Can we still come back US under our H1-B and resume her EB process if we failed to get our DV visa and missed August 17 this year?

 

[mia22]

Since she is EB3 2003, her date should be current in October or soon after. Then, she can file the 485. However, she should start the 140 as soon as possible. USCIS just cancelled premium processing for 140. Now, it might take up to six months or longer to have an I-140 approval. Mine took 6 months.

Considering her boss, it seems that she is in a very bad situation. You just need to have patience and work with the employer the best way possible. It seems that you will not be able to reach the Aug 17 filing.

Yes, your DV refusal cannot damage your H1B status. To come back to the US, you will need to have current H1B visa in your passport. Then, you can continue with the EB process.

I hope that the DV works for you and your wife can leave the abusive employer.

 

[mia22]

You mentioned that your wife has been working for almost 6 years on her H1B. I am not sure when her H1B sixth year expires. Please keep in mind in order to extend the H1B visa past the sixth year, one must apply for the I-140.

 

[toughcase]

You mentioned that your wife has been working for almost 6 years on her H1B. I am not sure when her H1B sixth year expires. Please keep in mind in order to extend the H1B visa past the sixth year, one must apply for the I-140.

Her current H1-B will expire in August, but she is undergoing 1 year H1-B extension now. I did not hear anything that she filling I-140. I believe what you meant "extending the H1B visa past the sixth year, one must apply for the I-140" was if she wants to extend "3 Years" H1-B visa after labor certificate. For my understanding, you are able to extend your H1-B visa year by year while waiting for your labor certificate. Once your labor certificate is approved, you are able to extend your H1-B visa every 3 years while continuing the rest of your green card process. Correct me if I am wrong~

 

[mia22]

In my opinion, she cannot extend the H1B visa just on basis of having an approved labor certification. To get the H1B extension past the sixth year for three years, she needs to have an approved I-140. Or if she has a pending 140, she can get one year extension. I think that by merely having an approved labor certification does not give you a right to extend the H1B. The I-140 has to be in process as a proof that the employer is still willing to sponsor the employee. The whole point of extending the H1B is not to punish an immigrant for slow government processing times. If one is not stuck in any process, the government does not allow extensions.

This is my opinion and I honestly think that I am right. If any other members have more knowledge, please contribute. Also, please check with the lawyer as soon as possible. It would be a very bad situation if she cannot extent the H1B status on time.

 

[toughcase]

In my opinion, she cannot extend the H1B visa just on basis of having an approved labor certification. To get the H1B extension past the sixth year for three years, she needs to have an approved I-140. Or if she has a pending 140, she can get one year extension. I think that by merely having an approved labor certification does not give you a right to extend the H1B. The I-140 has to be in process as a proof that the employer is still willing to sponsor the employee. The whole point of extending the H1B is not to punish an immigrant for slow government processing times. If one is not stuck in any process, the government does not allow extensions.

mia22,

Thanks for the info. I will ask my lawyer and I will also do a little bit more research online, but there is nothing she can do at this morning regarding to her H1-B extension application since she submitted already (her lawyer even suggest her to use premium process).

It would be a very bad situation if she cannot extent the H1B status on time.

That's true~

 

[toughcase]

mia22,

http://www.path2usa.com/immigration/h1bcorner/h1_7thyear_extension.htm

I understand what you are saying after I read the above article, but I was wondering if my wife can be considered as the "Case 1" since she filed extension before she received the notice from Department of Labor?