for 485 help

[ipf44]

If I have to leave the states for a while and want to withdraw now my EB3 485 receieved by uscis, can I submit it again when I come back ? Do I have to start from perm again ?

When I come back, I might stay with the same employer and same position, or might change to another employer. Will that make a difference ?

 

[sarwarmd]

If I have to leave the states for a while and want to withdraw now my EB3 485 receieved by uscis, can I submit it again when I come back ? Do I have to start from perm again ?

It sounds like you should be able to file I-485 again.

When I come back, I might stay with the same employer and same position, or might change to another employer. Will that make a difference ?

If you want to start with new employer, you have to start completely new processs.

 

[Jackolantern]

If you want to keep your case alive after leaving the US, file I-824 to transfer your case to a US consulate in your country. The I-824 will result in USCIS withdrawing the I-485, but you'll be able to obtain the green card through consular processing if your priority date becomes current and you get a consular interview while you're still there.

If you return to the US before the consulate interviews you for the green card, you can file I-485 again without having to redo PERM and the I-140, if the employer kept your I-140 alive. However, beware that once you lose the I-485 as a result of transferring to consular processing, you won't be protected by AC21 anymore, so the employer may withdraw your I-140 which would mean you'll have to start all over with a new employer.

 

[ipf44]

So you mean if I stay with the same sponsor employer, I can refile 485 directly, without restarting perm I-140 after withdrawing old 485 ?

And you mean the above is not true is there is a job change, which have to start over ?

 

[Jackolantern]

So you mean if I stay with the same sponsor employer, I can refile 485 directly, without restarting perm I-140 after withdrawing old 485 ?

It's not really about whether you stay with the employer, it's about whether the employer revokes the I-140 or not. If you no longer have a pending I-485, the employer can revoke the I-140 even if you are still working for them. Or they may decide to keep the I-140 alive even if you're working for somebody else, because they want you to eventually return to the US to work for them.

Once you leave the US and no longer have an active I-485, you are at the mercy of the employer and their decision to either keep the I-140 alive or revoke it. If they revoke the I-140 you'll have to start all over.

If you do your part to keep the case alive by filing I-824 when you leave the US, and the employer does their part by keeping the I-140 alive, you can refile I-485 after you return to the US, without restarting the PERM or I-140. But to file the new I-485, your immigration status at that time must allow it *and* your PD must be current. Some types of status will not allow you to file an EB I-485, for example if you entered with the visa waiver program, or if you entered with a J1 visa that has an active home country residence requirement.

But if you remain in the US and change jobs, the employer cannot revoke your I-140 if it's been pending for at least 180 days and the new job meets the AC21 "same or similar" criteria.

 

[ipf44]

But if you remain in the US and change jobs, the employer cannot revoke your I-140 if it's been pending for at least 180 days and the new job meets the AC21 "same or similar" criteria.

Jack, I am confused at this point because I thought sponsor can revoke I-140 even under AC21, except one can still work and 485 still valid using AC21 even I-140 revoked ?

 

[Jackolantern]

The employer can *ask* USCIS to revoke the I-140, but once you respond with evidence of AC21 criteria, the I-140 will remain active (unless there is some other reason to revoke it, like fraud).

Your green card cannot be approved unless the I-140 is approved and is not revoked. So it is not true that AC21 allows you to continue your I-485 with a revoked I-140; AC21 stops the I-485 from being revoked in the first place.