I-485, J-1 status and possible extentions

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stinger5

Registered Users (C)
Hi everyone,
I am a postdoc on J-1 visa which is expiring in July 2008. I have I-140 (EB-1) pending since July 2007 and according to current processing dates for TSC I should know the results soon. My visa advisor at the University suggests that I should file I-485 as soon as possible, even before knowing the outcome of my I-140 application, since the University is concerned that I won’t get my EAD card in time before the end of July, when my J-1 will expire, since it can take up to 90 days to process EAD. These 90 days (before the end of July) will start counting in May. And if EAD is still not approved before the expiration of my J-1 visa then I won’t be able to work and has to be separated from the University.
Now, when I asked my International Advisor what will happen if my I-140 is denied, she says that in this case they’ll simply extend my current J-1 visa when it will be coming close to expiration. Is this really the case? Because I read on several occasions on various immigration forums that filing I-485 (Adjustment of Status) effectively negates the J-1 visa and it can’t be extended after that. So if I file I-485 now and then find out that my I-140 is denied that would mean that my I-485 will be also denied and I’ll be out of status? Is my understanding of this issue correct? Or is my visa advisor at the University correct and my J-1 can be extended without any problems if I-140 is denied?
 
Why not extend the J-1 from now? If they won't or can't do that, you don't really have a choice to do anything but file the I-485 and EAD ASAP, do you? The chance of the EAD taking more than 2 months to process is high. Do you think the chance of I-140 denial for you is higher than that? To file the I-485 you have to gather a mountain of stuff, including a medical exam with an authorized doctor (which could take you a couple of weeks to get an appointment, plus another couple of weeks to get the results back). Do you have all of that ready yet?
 
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can J-1 be extended with I-140 pending? Does anybody know? I already have all the medical exams. so this is not an issue.
 
stinger 5 .
I have the exact same situation as you. I applied for I-140 in Dec. 2007 and I am on a J-1. I renewed by DS-2019 (J-1) on February 2008 (2 months after applying), that is You can renew with a pending I-140 as I did. 2 weeks later, I had an approval and one week after that I applied for my husband's EAD based on a J-2 status. All of that with an I-140 approved.
I am currently asking our International office on the possibility of renewing my J-1 after applying for I-485 (I haven't done that yet) and I will let you know soon.
But I did as exactly Jackolantern suggested, I renewed my J-1 (as I said in Feb) till July 2009. So you can renew you J-1 now easily. (The most important point that you have not applied for a waiver, if you did, you definitely cannot extend your DS-2019). In fact, this process is done electronically through the SEVIS in a couple of days.
In fact, I am thinking about the option for me to extend my DS-2019 even further before I send my I-485.
 
The I-140 is filed by the employer, not the employee, so it is not a real indicator of the employee's intent. A Canadian poster in another part of the forum successfully used that argument to challenge the USCIS for his TN visa. But still, they went in the direction of denial and a fight was required to get the approval.

Even if the extension is approved, make sure you don't leave the country without filing the I-485 and getting Advance Parole. You don't want to be fighting the USCIS from outside the country because they won't let you back in with a J-1.
 
hnks said:
stinger 5 .
I have the exact same situation as you. I applied for I-140 in Dec. 2007 and I am on a J-1. I renewed by DS-2019 (J-1) on February 2008 (2 months after applying), that is You can renew with a pending I-140 as I did. 2 weeks later, I had an approval and one week after that I applied for my husband's EAD based on a J-2 status. All of that with an I-140 approved.
I am currently asking our International office on the possibility of renewing my J-1 after applying for I-485 (I haven't done that yet) and I will let you know soon.
But I did as exactly Jackolantern suggested, I renewed my J-1 (as I said in Feb) till July 2009. So you can renew you J-1 now easily. (The most important point that you have not applied for a waiver, if you did, you definitely cannot extend your DS-2019). In fact, this process is done electronically through the SEVIS in a couple of days.
In fact, I am thinking about the option for me to extend my DS-2019 even further before I send my I-485.
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Amazing, for the first time I find someone in exactly the same situation and also saying that this can be done. still, how to reconcile the immigrant intent with extending a non-immigrant visa?
 
The problem is not so much USCIS as the consulate. USCIS has stricter guidelines than the consulates abroad. A consular officer can deny issuing you a visa stamp and you can't return. Why don't you file 485 and AP/EAD?
 
stinger5 said:
Amazing, for the first time I find someone in exactly the same situation and also saying that this can be done. still, how to reconcile the immigrant intent with extending a non-immigrant visa?
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I just explained. The I-140 is filed by and is a statement of the employer's intent, not the employee's. Without having filed an I-485, especially in this case where the poster has had the opportunity to file the I-485 for several months but didn't, it is not clear that the employee wants to immigrate.

But still, they can deny the passport stamping because of the I-140, because whenever you apply for a nonimmigrant visa at a consulate (other than a visa like H1 or L1 which allows dual intent), the presumption is that you have immigrant intent and it is your duty to prove otherwise.
 
Jackolantern said:
I just explained. The I-140 is filed by and is a statement of the employer's intent, not the employee's. Without having filed an I-485, especially in this case where the poster has had the opportunity to file the I-485 for several months but didn't, it is not clear that the employee wants to immigrate.

But still, they can deny the passport stamping because of the I-140, because whenever you apply for a nonimmigrant visa at a consulate (other than a visa like H1 or L1 which allows dual intent), the presumption is that you have immigrant intent and it is your duty to prove otherwise.
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Nobody is talking about visa stamp in the passport. We are only talking about extending J-1 status, i.e. DS-2019. this is done inside the country, while visa stamp is only done outside the country, in the consulate abroad. The only disadvantage of that is that a person won't be able to travel outside the US and re-enter. This is the only purpose of visa stamp in the passport.
 
Jackolantern said:
The I-140 is filed by the employer, not the employee, so it is not a real indicator of the employee's intent. A Canadian poster in another part of the forum successfully used that argument to challenge the USCIS for his TN visa. But still, they went in the direction of denial and a fight was required to get the approval.

Even if the extension is approved, make sure you don't leave the country without filing the I-485 and getting Advance Parole. You don't want to be fighting the USCIS from outside the country because they won't let you back in with a J-1.
Click to expand...

In my case (EB-1 EA), I-140 was filed by me, not the employer. This would also be the case for EB-1 NIW. In these cases self-petition is permitted.
 
stinger5 said:
In my case (EB-1 EA), I-140 was filed by me, not the employer. This would also be the case for EB-1 NIW. In these cases self-petition is permitted.
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In that case, you obviously can't use the argument that your I-140 represents somebody else's intent. I don't know if hnks successfully filed the J-1 extension with a self-petitioned I-140 pending.
 
My approved I-140 was based on self NIW petition. Here is my timeline:
I-104 received Dec. 10, 2007.
Approved Feb 15th, 2008
I just looked on my renewed DS-2019 and I noticed the renewal date is also feb 15th, 2008 and I received it and signed it on Feb 26th 2008.
Husband's EAD application (based on J-2 status) Received Feb 28th 2008. Approved on March 15th 2008.
 
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