Hadron and other pundits! I-485 and fellowship question

V

vidyaram

Registered Users (C)
I have applied for I-485 based on my employment (EB-2) and my application receipt Date is Oct 27, 2003. My Priority Date is Feb 2002. Since my application is long overdue, I have contacted USCIS through the National customer service and subsequently through an infopass appointment. I was informed that my application is pending based on background check and it was initiated on November 3, 2003
I have completed nearly 6 years as a physician in an underserved area in a H1 visa. I would like to join a fellowship program soon. If I do not get my greencard before the fellowship start date, what are the options for me without jeopardizing the I-485 application?
a. It is possible for me to work under my current employer part-time while doing fellowship?
b. Should I join my fellowship under another title and continue working as a physician there after I get my greencard? If so, should I file for AC 21? This fellowship is in the same state but different place than the one I work now.
Thanks in advance
VidyaRam
 
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Fellowship.

I feel your frustration and pain. Unfortunately noone can give you a definitive answer to your question as much of this is left to interpretation by the USCIS officer adjudicationg your case. It is this inherent uncertainty and lack of clarity in the rules and the fact that one invests all this time/effort(in your case 6 yrs and counting) that makes the whole system feel unjust.


In answer to your question I think it all depends on your appetite for risk. Most likely you will be OK, especially if you can demonstrate that you have intent to come back to your current job (once your green card is approved), you can build a case to state that you were doing a fellowship to better serve in that job especially if you can get a letter from your employer that this qualification will aid in you performing a job to that community's needs. However if you get the green card through that route you are duty bound to take up that job for a reasonable period of time afterward. Since a LC is based on a future job offer, what you do in the interim should not matter as long as you maintain legal status...................(check this with a Lawyer but that is my interpretation).


Regarding maintaining a job and a fellowship, AC21 portability is based on you accepting a likewise job, so a fellowship might be a stretch. I am not sure what sort of fellowship you are considering but, it would seem difficult to do a full time job and a fellowship simultaneously.

I am not sure if you have a physician NIW approved, in view of the recent verdict in favour of physicians you might be able to get a immigrant petition approved on the basis of your 6 yrs of work in an underserved area and have that time counted retrospectively. I am sure the attorney who won this case would love a case like yours to stick it to the USCIS.

Another thing, I am hearing more and more about this namecheck thing, could you expand a little more on your experience? How do you find out if you have been cursed with this misfortune? What are the prospects for resolution etc.
Being caught in that web is truly a disaster that apparently can befall anyone.
 
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"Should I join my fellowship under another title "

How can one do that? what titles can be used??
TIA
 
posmd: Thanks for the immediate reply.
"Regarding maintaining a job and a fellowship, AC21 portability is based on you accepting a likewise job, so a fellowship might be a stretch. I am not sure what sort of fellowship you are considering but, it would seem difficult to do a full time job and a fellowship simultaneously."
It is an infectious Disease fellowship and I am planning to do 2 weekends in a month for the current job. The current job will only be part time. I was wondering about keeping the current priority date because I already have an approved I-140 petition.

"Another thing, I am hearing more and more about this namecheck thing, could you expand a little more on your experience? How do you find out if you have been cursed with this misfortune? What are the prospects for resolution etc."
When I called the customer service, they sent a letter stating that my wife's application was stuck in name check and that mine is being processed longer because of the nature of the case. It can take 6 more months before they write to me and it if takes longer, I have to contact them.
When I took an infopass appointment with an immigration officer, I found out about the background check. It has been initiated for more than 2.75 years:(
From what I have researched, Senators can some time help and sometimes not and some people have found success with the Writ of Mandamus. Yet to check about that.

""Should I join my fellowship under another title "
How can one do that? what titles can be used??"
When I was searching for similar posts with the phrase greencard for fellowship, somebody had suggested about the program sponsoring the candidate based on a future permanent job like a hospitalist position. Check that discussion if you are interested in that.
 
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You say that you did 6 years in underserved location and that you have an I485 under the EB-2 category. Is the I140 a national interest waiver for physicians in underserved areas, or is it a 'plain vanilla' type LC based I140 ?
 
"You say that you did 6 years in underserved location and that you have an I485 under the EB-2 category. Is the I140 a national interest waiver for physicians in underserved areas, or is it a 'plain vanilla' type LC based I140 ?"
I was on J1 visa before I came here and that is why I did my J1 waiver in this underserved area and I did apply through the plain vanilla type LC based I140 which was approved very soon but stuck at this job because of the security check problem with the I-485 application. My wife feels that we should have chosen the NIW route over this. If I don't want to do fellowship, I can move on to a big city with AC 21. Looks like I have to look into Writ of Mandamus
 
With a LC based pending I485, I would only make 'lateral moves'. You will have to use AC-21 to make the change in job, and AC-21 applies to similar jobs only.
 
Why not consider getting a NIW 140 approved now on the basis of your service in the HPSA/MUA for the past 6 yrs. If you can get that then you could try to transfer your pending 485 to the NIW 140 petition and then you might be more comfortable to make your fellowship move.
On the other hand as things stand a move laterally to another job appears to be reasonably safe.

I think that it might be worth discussing this strategy with your Lawyer. Especially since you appear to have no idea when you will be released from this namecheck thing.
 
"Why not consider getting a NIW 140 approved now on the basis of your service in the HPSA/MUA for the past 6 yrs. If you can get that then you could try to transfer your pending 485 to the NIW 140 petition and then you might be more comfortable to make your fellowship move."

That is such a good idea! I will talk to my lawyer about that. The only problem would be that my priority date will be pushed by several years. You can't have the cake and eat the cake too! Can you? I have to see which is more important, PD or fellowship.

I have to really thank you for taking the time to write such good suggestions. I called a lawyer to have a consultation about my case and he wants to do nothing until he becomes my lawyer!

Ram
 
Eating cake and preserving it

Well it might be possible. It depends on whether you already have an approved 140 petition and you can persuade your employer to leave it unaffected even if you leave them some time down the road before actually getting your green card.

You could try to have the 2003 priority date transferred to you NIW140 petition by attaching a copy of your approved LC based 140 to your NIW petition.

In view of the clear complexity of your case and the notoriety of Atty. Shusterman to the USCIS in this issue, it might be worthwile either consulting with him or even retaining his services for this filing. I am sure he would like a case like yours in view of recent developments. Just a thought.
 
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