GC holder applying for unmarried son who is H1-B status

[zeze]

Hello,

When my wife and I applied for our adjustment of status in August 2007, my son could not be included in our application since he was above 21 years on the date of application. My wife and I ultimately got our GC in August 2008. My son on the other hand converted his H-4 visa to a F1 visa and continued his studies. He graduated in the year 2009 and got a job and now has been holding H1-B through his company since Dec 2010.

Although his company may ultimately apply a GC for him, we do not want to take chances, and decided to apply a family based GC for him now. My question to this forum is:

1. Is this ok if, when the company applies his GC, a family based GC is pending for him. Is it ok for two sponsors to file for a single applicant?

2. Is there a waiting period in H1-B status before a GC can be applied?

3. If after our filing his GC, he loses his job, does the fact that a 485 is pending in his name qualify him to stay on in US and not return to his originating country

I look forward to your expert opinions

Thanks

 

[Jackolantern]

When my wife and I applied for our adjustment of status in August 2007, my son could not be included in our application since he was above 21 years on the date of application.

It's not as simple as being over 21 on the date of the adjustment of status application. I hope you analyzed the CSPA provisions before concluding that he was ineligible. He had an H4 at the time, so it appears that he actually was eligible and you made an incorrect conclusion due to lack of understanding of the CSPA. Now it's too late to correct that mistake. How old was he (in years and months) when you filed your I-485? What was the basis of your I-485 ... employment or family-based?

To answer your questions:

1. Yes, one can have any number of sponsors at the same time, family and otherwise, and then go with the first one that reaches the end of the process.

2. No. There is no waiting period to begin the initial paperwork such as I-130 (for family-based) or labor certification/I-140 (for employment based), but there usually is a waiting period to file the I-485, depending on the specific category of employment-based or family-based green card.

3. He has a pending I-485? I thought you said he was disqualified due to being over 21. Or are you referring to a new I-485 that you will file for him? If that's what you're asking, your question is likely to be moot, because it will be years before he is eligible to file an I-485 based on your sponsorship ... by that time he's probably used up his 6 years of H1B and left the US. But if he's still in the US in H1B status when he becomes eligible to file an I-485, the pending I-485 will allow him to remain in the US legally even if he loses his job.

 

[Concerned4us]

He must maintain a legal status on his own accord until he receives his GC. Your filing on a family basis will not create any special privilege for him to remain if he is not maintaining his status. It is critical that he not become illegally present.

Why did you delay filing? Student visa status?

You appear to understand that he cannot file on the basis of employment. He must have an employer willing to sponsor AND make it through the PERM process where no USC or LPR is qualified for and desirous of his job. This will be difficult unless he is uniquely qualified. He should be prepared that it may be necessary to exit the US until his priority date becomes current.

 

[zeze]

It's not as simple as being over 21 on the date of the adjustment of status application. I hope you analyzed the CSPA provisions before concluding that he was ineligible. He had an H4 at the time, so it appears that he actually was eligible and you made an incorrect conclusion due to lack of understanding of the CSPA. Now it's too late to correct that mistake. How old was he (in years and months) when you filed your I-485? What was the basis of your I-485 ... employment or family-based?

Thanks for your reply Jacko. During our filing time, back in 2007, I did read about CSPA and consulted our lawyer about it and they determined that he was not eligible. He was 21yrs and 6 mths and I was filing my I-485 under employment based GC sponsorship.

3. He has a pending I-485? I thought you said he was disqualified due to being over 21. Or are you referring to a new I-485 that you will file for him? If that's what you're asking, your question is likely to be moot, because it will be years before he is eligible to file an I-485 based on your sponsorship ... by that time he's probably used up his 6 years of H1B and left the US. But if he's still in the US in H1B status when he becomes eligible to file an I-485, the pending I-485 will allow him to remain in the US legally even if he loses his job.

This question was based on his filing I485 through our sponsorship. He has never filed I485 before. I understood from the USCIS site that I-131 and I-485 can be filed together; I may have misinterpreted. I also understand that he will fall under Category 2, since we are GC holders and not USC. Does that mean that we must first file I-131 and then he file I-485 only after I-131 is approved?

Concerned4us: I delayed filing I-131 because he in F1 status and then transitioned to OPT (Optional Practical Training) while on this job. While so, I was advised not to file GC application because there is no dual intent whereas for H1-B there is dual intent. Now that he is on H1-B, I think its the right time to apply