H1b while 485 petition is pending

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flyjohn

Registered Users (C)
Hi,

My situation is kind of weird.
My 485 petition is pending (family-based). However, I am thinking to get married and want to get GC for my wife as well. Then going through Eb2 will be much faster. But I have a couple of questions:

1. What would happen to the old petition after I get married? I filed I-485 as a single child (over 21) of US citizen, so I was in F1 category. If I get married, would the old petition voids automatically?

2. My employer applied H1b for me and I just got notice that says I won the lottery. However, since I have the 485 petition pending (including EAD and AP), how would it affect my status in the US? Will I be able to leave the country after October 1st to get H1b visa in my home country and come back?

3. The company will proceed the process for GC for me (EB-2). I wonder if it may affect my application when I file I-485 again?

Thank you very much. All answer will be appreciated.
 
You can have multiple petitions and multiple I-485s going on simultaneously, as long as they're sponsored by different family members or employers, and then you can get the green card based on whichever one proceeds to completion first. You can also get an H1B while your I-485 is pending, provided that you don't have disqualifying factors such as previous illegal presence or already having used up 6 years of H1B status.

If you marry, you will move to the F3 category, which would mean having to promptly notify USCIS of the marriage and also having to wait a few more years for your priority date to become current in F3. If your F1 priority date is current right now or close to current, it will probably be faster to get the green card while unmarried in F1, and then marry and file for your wife in category F2A.

But if you're in EB2 and not from China or India, and you reach the I-485 stage based on the EB2 petition, it may be better to get married while the EB2 I-485 is pending, so your wife can also file I-485 (if she's inside the US legally) or qualify for follow-to-join at the consulate.
 
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Hi Jack,

Thanks for your reply. They are really helpful.

But I am still wondering about my status now. As far as I understand, my F1 status is void once I file I-485 and USCIS receives. So, could I still leave the US and come back using my H1b (after it starts) while my petition is pending? Am I able to apply H4 for my wife?

Thanks for you reply. Your answer will be appreciated.

Jackolantern said:
You can have multiple petitions and multiple I-485s going on simultaneously, as long as they're sponsored by different family members or employers, and then you can get the green card based on whichever one proceeds to completion first. You can also get an H1B while your I-485 is pending, provided that you don't have disqualifying factors such as previous illegal presence or already having used up 6 years of H1B status.

If you marry, you will move to the F3 category, which would mean having to promptly notify USCIS of the marriage and also having to wait a few more years for your priority date to become current in F3. If your F1 priority date is current right now or close to current, it will probably be faster to get the green card while unmarried in F1, and then marry and file for your wife in category F2A.

But if you're in EB2 and not from China or India, and you reach the I-485 stage based on the EB2 petition, it may be better to get married while the EB2 I-485 is pending, so your wife can also file I-485 (if she's inside the US legally) or qualify for follow-to-join at the consulate.
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flyjohn said:
But I am still wondering about my status now. As far as I understand, my F1 status is void once I file I-485 and USCIS receives.
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So you had F1 (student) status, and are also in the F1 (family 1st preference) category? :confused:

So, could I still leave the US and come back using my H1b (after it starts) while my petition is pending? Am I able to apply H4 for my wife?
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H1B/H4/L1/L2 specifically allow holding the particular status while an I-485 is pending. So yes, once your H1B is approved and stamped in your passport, you can get H4 for your wife (she can apply together with you) and return to the US and still keep your I-485 alive. But marriage would push your I-485 to the F3 category, adding more years of waiting.
 
Jackolantern said:
So you had F1 (student) status, and are also in the F1 (family 1st preference) category? :confused:

Yes, I am in the US with F1/OPT visa. I am also the son of a US citizen (my Mom). I came to the US in 07' as a student (F1).

H1B/H4/L1/L2 specifically allow holding the particular status while an I-485 is pending. So yes, once your H1B is approved and stamped in your passport, you can get H4 for your wife (she can apply together with you) and return to the US and still keep your I-485 alive. But marriage would push your I-485 to the F3 category, adding more years of waiting.
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So, I was wondering that since my F1/OPT is void now b/c the pending AOS, could I leave the US after Oct. 1st and come back using my H-1b? Thanks.
 
flyjohn said:
So, I was wondering that since my F1/OPT is void now b/c the pending AOS, could I leave the US after Oct. 1st and come back using my H-1b? Thanks.
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Yes you can do that. That's what I just said in my previous post.

Make sure you have a valid Advance Parole when leaving the US to get your H1B stamp. You must have a valid AP or H1B/H4/L1/L2 when leaving the US with a pending I-485, otherwise the I-485 may be deemed abandoned. Your H1B status won't start until you come back to the US, so you'll need the AP when you leave. But don't use the AP when you return to the US, use the H1B to reenter.

Also remember to inform USCIS of the marriage. Otherwise things will get complicated if they approve your green card thinking you're still unmarried.
 
Jackolantern said:
Yes you can do that. That's what I just said in my previous post.

Make sure you have a valid Advance Parole when leaving the US to get your H1B stamp. You must have a valid AP or H1B/H4/L1/L2 when leaving the US with a pending I-485, otherwise the I-485 may be deemed abandoned. Your H1B status won't start until you come back to the US, so you'll need the AP when you leave. But don't use the AP when you return to the US, use the H1B to reenter.

Also remember to inform USCIS of the marriage. Otherwise things will get complicated if they approve your green card thinking you're still unmarried.
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Hi Jack,

Thanks a lot for your reply. I really appreciate.

Sorry I may need to ask more questions.

Now, I am thinking to withdraw my petition because I am afraid that the process may go faster without the interview (is it possible?) even though I do want to keep the case pending. I wonder if there is a specific form I need to submit in order to withdraw the case or I just need write a letter to USCIS with sufficient information and reason? Also, if I need to do interview, would that be possible to postpone my schedule to be after Nov. or Dec. this year (after my marriage)? Sorry for bothering again. All the answers will be appreciated.

Hank
 
Why the withdrawal of your I-485? Is it because you want to return with H1B, and you're worried that they might approve it before you get the H1B? Is your priority date current now?

How long has the I-485 been pending? Have you given biometrics (fingerprints) yet?

Yes, it is possible for non-marriage family-based I-485 application to be approved without an interview. But not without biometrics (except for people who are old enough or young enough to be exempt from biometrics).
 
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Jackolantern said:
Why the withdrawal of your I-485? Is it because you want to return with H1B, and you're worried that they might approve it before you get the H1B? Is your priority date current now?

Yes and yes. I cannot file I-485 until my priority is current (family-base).

How long has the I-485 been pending? Have you given biometrics (fingerprints) yet?

I filed it in the beginning of Feb. (so ~3 months), and yes, I just had it few weeks ago before my company informed me their PERM process and I was informed my H-1b is selected.

Yes, it is possible for non-marriage family-based I-485 application to be approved without an interview. But not without biometrics (except for people who are old enough or young enough to be exempt from biometrics).
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So, I am worried if it gets approved before having an interview. Then, I can only cancel my green card (in order to go through the employment-based process), which could jeopardize my future process....

Thanks a lot
 
Jackolantern said:
What do you mean? I thought you already filed the I-485.
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Sorry I did not say it clearly. I was informed that I-485 cannot be filed until the priority date becomes current for my case. So, my priority is current now.

Thanks a lot for your reply!
 
You said:

I filed it in the beginning of Feb. (so ~3 months)...
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You filed what in February? Did you file the I-485 and it got rejected because your priority date was not current in Feb? What is the priority date for your family-based case (over-21 unmarried child of USC)?
 
Jackolantern said:
You said:


You filed what in February? Did you file the I-485 and it got rejected because your priority date was not current in Feb? What is the priority date for your family-based case (over-21 unmarried child of USC)?
Click to expand...

Yes, I filled this February when my priority date becomes current, so it did not get rejected b/c of it. I was informed about filling date of I-485 (I mentioned) by a friend who did family-based AOS before. My priority date is in Jan. 2006.

ps. I might be wrong. I am really sorry for the confusion.

Thanks again!!
 
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