h1-b spouce problem caused by Augost i-485 cut-off

[iimmigrant]

Hi,

Me and my spouse work for the same employer, both on h1-B visa.
The lawyer of our employer has, last year recommended to him that I'd be a beneficiary on my spouses GC application and therefore eligible to continue to work - removing the need to start a separate GC process.

My spouse has received LC in September and my 6th year h1-B was also renewed in September. We were not aware of any potential problems since the attorney assured us last year that they were expecting to receive LC approval by Sept/07 and after filing I-485, my spouse would be able to continue on h1-B, while I could apply for and receive EAD within 90 days (~December 2007).

I weren't aware of August visa allocation cut-off, before just a few days ago. Today the lawyer informed us of the fact that my spouse cannot file I-485 until the freeze is over. While she will be able to extend her H1-B (based on LC being filed > 365 days prior to her 5th year H1-B extension), I will be forced to change status to H4 in Sept 2008, if the I-485 filing freeze is not over. I feel extremely let down by the lawyer, who should have anticipated the problem in August and offered an alternative for my employer to start a separate GC process by starting LC, before my 5th year H1-B was over.

What are my choices for the best chance to keep my work permit status after my 6th year H1-B is over? A few ideas I was considering:

1. Is it possible to file PERM LC and be eligible for 7th year H1-B, or obtain EAD?

2. What if the LC process is started less then 365 days of 6th year expiration? Will I just have a small gap after 6th extension on H4, or is it over for me to think about GC process?

3. Can moving employers change my situation (for the better)?

I would appreciate any help/suggestions

 

[lprkhoj]

- File PERM
- Hopefully it'd get approved in a couple of months.
- Apply for I-140 and wish that it gets approved before your H-1B expires.

If that happens, you'd then be eligible to file for H-1B extension.

 

[iimmigrant]

Thanks for your reply, lprkhoj.

If that happens, you'd then be eligible to file for H-1B extension.

If it doesn't will my whole case be scrapped, or will I simply have to change status to H4, while I-140 gets approved?

I was thinking of going even further - can I also apply for 1-140 premium processing?

Also, as I understand the PERM is the only choice - right?

In the above scenario (and I know this is not my immediate problem but trying to think ahead) at which stage would I be able to switch employers and how?

Can I do the above PERM->I-140 right away with a new employer w/wo H1-B transfer?

Oh, and one silly question : Does anyone think the priority dates will become current anytime in 2008 for EB3?

 

[bigbang2001]

As pointed by lprkhoj, you should file for PERM and hope for I-140 approval before your H1b expiry so you can file for extensions.

Unfortunately I-140 premium processings is suspended.

Changing employer may help only if PERM is filed quickly in your case. Your H1 will expire when 6 years run out and you can not have an extension with out approved I-140.

EB-3 current ? Well it did happen for a month in July so you can hope.

Thanks for your reply, lprkhoj.


If it doesn't will my whole case be scrapped, or will I simply have to change status to H4, while I-140 gets approved?

I was thinking of going even further - can I also apply for 1-140 premium processing?

Also, as I understand the PERM is the only choice - right?

In the above scenario (and I know this is not my immediate problem but trying to think ahead) at which stage would I be able to switch employers and how?

Can I do the above PERM->I-140 right away with a new employer w/wo H1-B transfer?

Oh, and one silly question : Does anyone think the priority dates will become current anytime in 2008 for EB3?

 

[iimmigrant]

Your H1 will expire when 6 years run out and you can not have an extension with out approved I-140.

Can you clarify this? Do you mean that once it expires, even if the I-140 approval comes a day late, I cannot extend? What are the options in this situation (e.g. re-entry) and will the GC process lapse due to H1-B expiration?

Unfortunately I-140 premium processings is suspended.

Do you have any authoritative link for this? I have read here, that the suspension only applies to I-140s requesting LC substitution.

The article above goes on to say that:

USCIS continues to accept the following types of I-140 Petitions for Premium Processing: I-140 Petitions for Extraordinary Ability Aliens (EB1A); Outstanding Researchers (EB1B); I-140 Petitions for Advanced Degree Professionals not requiring a National Interest Waiver (EB2); I-140 Petitions for Professionals and Skilled Workers (EB3).

 

[thyramax]

1) You have less than a year till Sep 2008.
2) File Perm immdly.
3) Consolidate all the vacations that you have taken till date (outside US). Check if the recaptured days + what is left till Sep 2008 is > 1 yr from the date of your perm file.
4) alternately, you can file perm, go back to other country where your employer has branches and try working from there for a period of 4 -6 months. This should give you 1 yr time.

 

[iimmigrant]

File Perm immdly

As I understand including Advertising time + "quiet period" + PERM approval/receipt can take at least 6 months - correct?
Since no preparation for PERM has been done, that leaves me with only a couple of months to receive I-140 approval.

Question is: would I-140 expedition be merited as a special circumstance (due to substantial financial hardship for example, if I go to H4, having to sell house, support US born child, etc.)?

Another set of questions: If I receive I-140 and get 3 year H1-B extension on time, is it possible to transfer my H1-B to another company and continue GC process there? In this scenario, would I be able to retain priority date, and what would be left for the new employer to do for my GC process?

Thanks

 

[TheRealCanadian]

Question is: would I-140 expedition be merited as a special circumstance (due to substantial financial hardship for example, if I go to H4, having to sell house, support US born child, etc.)?

You can ask, but I doubt USCIS will give it to you. Your problem is that you knew when your H-1 would expire, so it's not like your current situation is unforseen and it doesn't rise to the level of causing significant harm to a US citizen.

If I receive I-140 and get 3 year H1-B extension on time, is it possible to transfer my H1-B to another company and continue GC process there? In this scenario, would I be able to retain priority date, and what would be left for the new employer to do for my GC process?

Sure. You'd retain your priority date, but your employer would need to restart the process from scratch.

 

[desi2007]

you need to get the labor approved (can get it in 6 months- do wage determination through easy state) for one year increment on H1b (beyond 6th year) and if you need three year increment, you will need I140 approved. talk to a lawyer and there are ways to get around it if you filed for labor. it is not all that bad.
sometimes when you are bogged down in h1...#@.&6^6, you can forget the main things.
Good luck.

 

[iimmigrant]

TheRealCanadian, thanks for the comments

so it's not like your current situation is unforseen

This situation was caused directly by the fact of the retrogression combined with the possible oversight by the lawyer to anticipate the situation. Having anticipated the retrogression, I could have started LC before the H1 start, not relying on EAD through spouse's I-485 - the thing that the employer and lawyer have decided to do. So it was unforeseen at least by me and my spouse. (would explaining this defeat this argument and reinforce the case?)

and it doesn't rise to the level of causing significant harm to a US citizen.

USCIS Expedite Criteria doesn't mention the need for anyone to be a US citizen, and I'm hoping to apply based on first criteria: "Severe financial loss to company or individual". I do consider a severe financial loss: 1. Our household income will be cut in half 2. we'll have to sell our house in a slow and deteriorated real estate environment. 3. we'll have to tap into my 401k as hardship withdrawal.

Are not the above reasons substantial enough, especially if I can show them extensively by figures. 401k hardship (penalty-free) withdrawal considers layoffs, quitting,, termination as hardship - completely the different body, but if one government body (IRS in this case) that is arguably more qualified in income and financial hardship issues, considers this as a hardship, why would not the USCIS?

How could I improve my expedition request so that it does meet the first criteria "Severe financial loss to company or individual"? Or what would be a realistic, non-exaggerated scenario of this?

 

[iimmigrant]

desi2007, thanks for your reply.

Yes, I'm am talking to lawyer and my employer and we may come up with a way you are hinting to. I just want to have a few more options besides hoping that my spouse's PD will or will not become current in 2008. You would understand.

 

[bigbang2001]

After July 2007 USCIS suspended I-140 Premium Processing. I don't know if they lifted the suspension due to resource crunch.

Can you clarify this? Do you mean that once it expires, even if the I-140 approval comes a day late, I cannot extend? What are the options in this situation (e.g. re-entry) and will the GC process lapse due to H1-B expiration?


Do you have any authoritative link for this? I have read here, that the suspension only applies to I-140s requesting LC substitution.

The article above goes on to say that:

 

[TheRealCanadian]

This situation was caused directly by the fact of the retrogression combined with the possible oversight by the lawyer to anticipate the situation.

I don't disagree. I'm just saying that from USCIS' perspective when claiming hardship, you are here on a temporary visa and you have known the end date years and in adavnce.

I do consider a severe financial loss: 1. Our household income will be cut in half 2. we'll have to sell our house in a slow and deteriorated real estate environment. 3. we'll have to tap into my 401k as hardship withdrawal.

Trust me, that's not enough. USCIS doesn't really care much about your hardship, they care if a US citizen or employer suffers hardship. Trust me, there have been plenty of aliens who have suffered financial loss. USCIS doesn't care.

As an example, I had a severely disabled US citizen daughter, and I didn't request an expedite, just that USCIS process my case in their stated times. I was told that this didn't meet the necessary criteria, so merely selling your house and losing a little bit of money won't even register for them.

How could I improve my expedition request so that it does meet the first criteria "Severe financial loss to company or individual"?

Find a US company that would lose six to seven figures if you cannot work for them after your H-1 expires.

 

[iimmigrant]

TheRealCanadian,

I don't disagree.

Nor am I arguing with you, just bouncing off ideas.

Find a US company that would lose six to seven figures if you cannot work for them after your H-1 expires.

I work for a small company (~50emp). Should not the loss be relative to the company's annual revenues?

Also, do you think I can qualify for EB-2 processing? I have Bachelor's + 5 years experience with current + 1 year gap + 5 years with two UK employers after my Bachelor's.

 

[Zgreen]

USCIS may start 140 PP again, once they settle down with the massive new filings from July/August and actually have the manpower to fulfill the 15-day requirement. That would be the best case but you never know. Without PP, your chance of getting a speedy 140 approval is pretty slim.

The worst case is that you switch to H4 and wait it out, either until your I-140 approval or your spouse files I-485 (depending on his PD, EB and country of origin).

But the key thing is to file PERM asap - it might still work out in the end. Good luck. BTW, think twice about what your lawyer is saying from now on - who in the world would anticipate VB becoming current right after LC approval?

 

[iimmigrant]

who in the world would anticipate VB becoming current right after LC approval?

You are absolutely correct. Problem is, my spouse and I have never bothered to do much research into how the process works and have been entirely relying on the lawyers, who we believed knew how to do their job. That was our big mistake. Until this problem came to light, we haven't even knew what the exact steps were in GC process, nor what was happening on the immigration scene with the visas.

My best guess for their gross oversight is that, looking at the progressively improving retrogression dates, culminating in numbers becoming current, the lawyers have gained a false sense of confidence in the process. Following the July visa fiasco, things have changed dramatically. Their defense now is that had they tried to start PERM process for me in July, after the regression, they still would have missed [end of] September (< 2months) deadline for filing. My problem with that argument is of course the fact that they did not bring this to our attention until now - nearly 5 months later. I would have been in MUCH better shape in terms of options I could explore, had I known the situation.