Help related to GC and using H1b as backup

M

munafn

Registered Users (C)
Hi Everyone,


well here are some details about my situation:


-Sponsored by Aunt for GC,
-We (mother and I) are Indian Nationals
-my mother is primary beneficiary (resides in dubai, UAE)
-I am a derivative (residing and working in the US on H1b -i-797 -no visa stamp as yet)
-I am eligible as a derivative through CSPA (confirmed by NVC)
-Petition I-130 approved August 2010
-Case forwarded to NVC since then
-Case Completed Last week (july 2011)
-Priority date is current as of August 2011 Visa Bulletin
-Embassy for Consular Processing is Abu Dhabi
-Expecting Interview letter/date sometime next month depending on embassy load

I hope that gives a little background. Now here is my issue. Once we get the interview letter/date, I will be traveling to Abu Dhabi for CP for the interview with my mother. But since I will be leaving the states temporarily, I was wondering IF something doesnt go right at the interview for some reason, and as long as I have an interview setup for my H1B, would I be able to use it as my backup? or do they cancel my h1b visa at the time of the consular processing interview? I would be going to India for the H1b interview. To elaborate and make it a little more clear, this is a "what if scenario"

So, (all dates are hypothetical)

-GC Interview date - September 29th
-at the same time I make an H1b interview date for October 17th (assuming GC stuff will finish in two weeks)
-After the GC interview, i go and if everything is cool, thats good. If not can I still go for my h1b interview in india? Will my i797 h1b noa be affected in anyway?

If someone could help me out with this I would appreciate it. I know and hope there wont be any problems with the GC interview but I need backups as well.

Thank you so much for your time and let me know if anything needs to be made clearer

Best Regards
 
If your GC interview is unsuccessful, whether they cancel your H1B depends on the reason for denial.

But you don't need to go abroad. You can stay in the US while your mother interviews abroad, then when she is admitted as a permanent resident you can file I-485 and complete the green card process within the US. That would delay your green card by 3-6 months, but if something goes wrong you wouldn't be stuck outside the US while trying to resolve it.
 
H1B allows for dual intent. Thus applying for a green card does not make you ineligible for an h1. The only reason why they would reject your H1B application was if something FRAUDULENT came up during the green card interview/process. You are fine!
 
Hi!
Thanks a lot for the quick responses! Jackolantern, I considered AOS, but I actually have to leave the country sometime this year anyway (for personal reasons) so I've planned to do it around the time of the consular processing or else I would have definitely considered AOS. Plus my mother would feel a lot more comfortable if I was with her during the entire interview process as she has been kind of unaware of the hassles i've encountered getting to this point. But thank you for your input!

Ananga73, I knew H1 was dual intent, was just unsure of how and when they would cancel and H1 if Green card is approved, like is it done at port of entry or at the consular processing interview itself. Either way, I think I got my answer to the question.

Thanks as always guys!
 
So you have an approved H1B petition, but not a visa stamp?

If they deny your green card for reasons of inadmissibility (e.g. criminal record, overstay), they would also refuse to give you an H1B stamp.

A scenario where they deny your green card but grant your H1B would mean that they found something wrong that is specific to your family-based green card case but not damaging to your H1B. If it's a temporary thing like a missing birth certificate or immunization records, all you need to do is find or correct the document and go back to the consulate. That's only a delay, not a permanent denial. And you can take steps to find all the necessary documents before the interview.

Assuming your aunt has lined up the necessary financials for the Affidavit of Support (I-864), it would be a rare scenario that would cause them to outright deny your green card but still find you admissible for H1B. Two things to be somewhat concerned about are (1) the CSPA and (2) if your mother and aunt don't have the same mother.

For #1, you can't trust the NVC's determination of your CSPA eligibility. They have often been wrong. You must understand and perform the CSPA calculation yourself to be sure.

For #2, if your aunt and mother don't have the same mother, the consulate may raise some doubt about whether their father is really their father. As a result, they may demand additional proof such as a DNA test, and if the test shows that your mother and aunt aren't really sisters they'll reject the green card case.

You are on H1B so you have to request time off from work. You'll need time for the fingerprinting, medical, interview, and to get back your passport after approval at the interview; that's about 3-4 weeks total. If anything delays your case, that's additional days or weeks. And you can't enter the US before your mother, because you are the derivative. So she will need to plan to arrive in the US very soon after approval, otherwise you're stuck outside the US. Will you be able to get that much time off from work?
 
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hi Jackolantern,

Yes I have an approved H1 but no stamp.. actually just got the approval about a week ago. I see what you are saying and it makes sense that if the GC is denied for some reason, it would make sense that H1 would be as well..

To be honest there really is nothing wrong with our case. I'm just overcautious I guess. My mother and Aunt are definitely from the same mother lol. there is no issue there or even with the affidavit of support as well.

I have also calculated my age based on CSPA and I have confirmed with 2 lawyers as to whether it was done right and it is correct, so everything is covered on that front as well.

I'm confident enough for the interview so it should go well hopefully. Also at work, they are aware of my situation and I will be able to push 2 weeks of PTO and if I'm held back any further which I probably will be, I'll work from home since it is very much possible for me to do that.

So I'm glad people at work are very accommodating on that front as well. For medical, they are quite quick in Dubai. They have a 24 hours turn around time and so far appointments are readily available.

I'm not sure when and how long fingerprinting and getting back the passport will take after the interview but I've taken it into consideration and will take that much time off from work accordingly. thanks for the suggestions though!

I'm just waiting till next month and hope the NVC gives us the interview date quickly!
 
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Will your mother be ready to travel to the US ASAP after getting back her passport with the approval? If she needs weeks or months to finish up her business in Dubai, she should at least plan for a short trip to the US to register her admission as a permanent resident, in order to enable you to return to the US with her or after her.
 
Yea that's what she has planned, she will be planning a short trip to register her admission. And we will be leaving immediately after approval
 
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