I140/485 question

[labrd]

My labor was just cleared. PD may 2003. I am from India. I am getting ready to apply for I140/485, EAD, AP. I have an opportunity for fellowship in 2007. Could I proceed with the fellowship on EAD. What are the options. How long is this process taking. I have applied through eb2 rir category. Retrogression affected country (india).
thx

 

[hadron]

> My labor was just cleared. PD may 2003. I am from India. I am getting
> ready to apply for I140/485, EAD, AP.

The cutoff for india in EB-2 seems to be 1/1/03, and you can't assume that it will progress linearly. Get all your paperwork ready so you can fire it off the moment you reach the cutoff, it might have retrogressed further the next month.

> I have an opportunity for fellowship in 2007. Could I proceed with
> the fellowship on EAD.

As long as your GC sponsoring employer is willing to give you an 'employment verification letter' in case USCIS sens you a 'request for additional evidence', you can do whatever you please with your EAD. The EVL certifies to USCIS that the conditions of employment in the LC/I140 continue to exist (doesn't mean you have to work there at that very moment, just that the job is still there).
The other option is: If you are currently working for the employer and you are able to get your I485 filed more than 6 months before you want to start your fellowship, you could avail yourself of the AC-21 rule. Once your I485 is pending for more than 180 days, you ar allowed to change to a different employer for a fundamentally similar job. And here is where the fellowship thing is a problem, it might not be considered a similar job description and you could loose your GC.

> How long is this process taking. I have applied through eb2 rir
> category. Retrogression affected country (india).

Anyones guess. Look up the processing times for I485s for your regional center (most are 12-18month these days). If you are eligible to file, but right around the time your I485 comes up for adjudication there is further retrogression, you could be stuck on EAD/AP for the long haul.

You need to look at USCIS as some sort of spiritual experience, otherwise you will just go nuts. Whatever the good lord is willing to grant you take and reply with thankful prayer.

Another way of looking at USCIS is as a geologic phenomenon or agricultural crop (you put you seeds out, you fertilize your field and put out weed-killer. but in the end, your harvest is determined by factors the weather or flooding that you have no control over).

 

[labrd]

thank you for the information. Boy, you excellent evaluation of the situation. Agree with you about this being a spiritual/philosphical situation in life. What's your opinion about going for consular processing, once I140 and 485 filed. My present job is good, but I always wanted to do fellowship and hence the hurry/anxiety. I am already 31 and the clock for acquiring new info is ticking. Thanks again Hadron for the info.

 

[hadron]

What's your opinion about going for consular processing, once I140 and 485 filed.

Well, you have to make up your mind before you file the I485 whether you want CP or AOS (actually, I believe you have to put it on the I140 whether you will pick up a visa or go for the adjustment, you can change from AOS to CP after the I140 is approved, but I am not sure how exactly).

As for CP vs AOS:

-- By filing I485 concurrently with your I140, you sort of 'lock' the priority date issue. From that point on, the worst thing that can happen to you is that you have to spend 3-4 years on EAD before you get your plastic card. Except for delaying your citizenship and the hassle of having to file paperwork every year, that is not such a terrible situation.

-- If you are from a country where immigrant visa interviews are easy to come by, CP can be a good option. You just wait for the I140 to be approved, then they go through various 'packages' and s### you have to file with the national visa center and the US consulate in your home country. I don't know how long that takes these days, but there is a standard lenght to it. The key is how busy the consulate in your home country is. If you are from whatever denmark, and they handle like 15 immigrants per year, you can get your immigrant visa interview within a couple of weeks. If you are from china and you have to wait 2 years after the I140 approval until you get your interview, it is different.

-- AOS seems to be quicker these days. I looked at the VSC processing center dates and it was something like 18 months. However, USCIS is known to lie incessantly about their true processing dates. While they insist that they are below 2 years, there are still people who filed in 2003 out there who haven't received their cards. So, while AOS is a hassle of sorts, it is quite reliable in the sense of that you can work while going through the process.

My present job is good, but I always wanted to do fellowship and hence the hurry/anxiety. I am already 31 and the clock for acquiring new info is ticking.

Well, I mentioned the issue with using AC-21 for a fellowship. In that sense, you would probably be better off with waiting for the GC to go all the way through and to defer the fellowship by a year.

Tough call.

 

[lalalala]

congrats on your labor, which center did u file from and which BEC was it in, i think u are lucky as there are people with 2001,2002 PD still waiting

 

[labrd]

Dallas BEC. WA state. I think they are now trying to clear a lot of labors

 

[J1victim]

I-485 Vs CP for physician

Well, you have to make up your mind before you file the I485 whether you want CP or AOS (actually, I believe you have to put it on the I140 whether you will pick up a visa or go for the adjustment, you can change from AOS to CP after the I140 is approved, but I am not sure how exactly).

>>>you have to write on your I140 whether you will go for AOS or CP. if you write I-485 AOS, you may still change it to CP later on -- by

- once your I-140 is approved, you use
- AC140 (attorney certified I140) and send request to consulate to grant you an interview. Now Madras Consulate in India doesn't accept AC140, Mumbai and New Delhi do accept. kolkata consulate - no statistics available.

By filing I485 concurrently with your I140, you sort of 'lock' the priority date issue.

partially correct.
- priority date is decided by the date of filing of immigrant petition
* for labor cert based petitions, it will be the date of filing PERM or labor petition
* for NIW physician based (EB1 or EB2) petition, it will be the date when I-140 was filed.

so the question of "locking" the priority issue comes only when it is a direct I-140

- this person "labrd" is from retrogressed country India. his priority date is May 2003. The visa numbers availability for india is at 1/2003. so an I-485 can't be filed at this time (under any category). only an I-140 can be filed, in which it has to be specified whether AOS/CP

.... If you are from a country where immigrant visa interviews are easy to come by, CP can be a good option. You just wait for the I140 to be approved, then they go through various 'packages' and s### you have to file with the national visa center and the US consulate in your home country. I don't know how long that takes these days,

time --- about 4 months from the time I-140 is approved to the date of interview at consulate (if visa numbers are current).

.. The key is how busy the consulate in your home country is. If you are from whatever denmark, and they handle like 15 immigrants per year, you can get your immigrant visa interview within a couple of weeks. If you are from china and you have to wait 2 years after the I140 approval until you get your interview, it is different.

usual time is 4 months.

.... AOS seems to be quicker these days. I looked at the VSC processing center dates and it was something like 18 months. However, USCIS is known to lie incessantly about their true processing dates. While they insist that they are below 2 years, there are still people who filed in 2003 out there who haven't received their cards.

for any immigrant AOS petiton (in which I-140 is already approved), there are 2 priority dates:
1. Immigrant petition priority date (the date "labor cert or PERM" or NIW based I-140 wass filed)
2. i-485 priority date (the date I-485 was filed).

these 2 dates are independent of each other.

2 examples:

a). person from india, labor cert filed Feb 2002 > LC approved May 2006 > I-140 filed (+I-485 also filed as visa numbers availability cut-off date is 1/2003 for india) filed May 2006 > I-140 approved Dec 2006 > I-485 still pending as I-485 processing date for NSC is Nov 2005.
this I-485 that was filed in May 2006, will be processed when the I-485 filing date becomes current.


b). person from india, labor cert filed Apr 2005 > LC approved May 2006 > I-140 filed (I-485 can not be filed as the visa number availability cut-off date is 1/2003, and the priority date is Apr 2005) filed May 2006 > I-140 approved Dec 2006 > I-485 still can not be filed as the visa number availability date has advanced to 2/2004 but is still not current for Apr 2005 labor cert filing date > Visa numbers become current for Apr 2005 priority date in June 2007 > now, I-485 is filed and this I-485 will have its priority date of June 2007 and will wait in queue until I-485 processing date becomes current.

.... So, while AOS is a hassle of sorts, it is quite reliable in the sense of that you can work while going through the process.

not necesarily. see above examples.

.... Well, I mentioned the issue with using AC-21 for a fellowship. In that sense, you would probably be better off with waiting for the GC to go all the way through and to defer the fellowship by a year.

agree with Hadron. if your I-485 is pending for >180 days, you may use AC21 and transfer to another job in a similar profession. getting a GC via a physician job and using AC21 to go to fellowship is a situation, that you don't know how USCIS is going to treat. you may be lucky or end up having years of hard work go down the drain and have your I-485 denied. You will have to decide what risk you wanna take.
.

 

[hadron]

With 'locking' the PD I meant that if you manage to file your concurrent I140/I485 at a point when this becomes possible (in his case visa bulleting advancing to 5/03), you are not going to be affected by further retrogression later on.
It that happened, you won't be able to adjust for a couple of years, but at least you have a lawful status + EAD. If you gamble on a number being available through CP at the moment you go for the interview, you can get burnt.

 

[lalalala]

for NIW/J1 waiver, i was under the impression that your PD is when u start the waiver job and not when you file 140 ( 140 in different cases can be filed before or after starting the waiver job)

 

[hadron]

I don't know whether you PD in the sense of the immigrant visa numbers becomes the start of your J1 waiver job.

The 5 years for the NIW start tolling from day 1 of the waiver job which is the only 'advantage' compared to doing your residency on H1b (and getting your GC through NIW afterwards).

 

[posmd]

for NIW/J1 waiver, i was under the impression that your PD is when u start the waiver job and not when you file 140 ( 140 in different cases can be filed before or after starting the waiver job)

I would be thrilled to bits if this was the case as it would help me a lot, however my inderstanding is that it is not the case, your priority date is only established when you actually file for the NIW petition, so if you did your waiver and filed for a NIW toward the end of your waiver time, then you would potentially be left waiting after your 5 yrs for your priority date to get current.
In the pre severe retrogression era, it was not a big deal since seldom were EB2 dates backlogged 3-4 yrs like they are now.They were infact generally less than 2 yrs in EB2 as far as I know. Hence by the end of your 5yr NIW you were generally set. None but the most astute lawyers were atuned to think about this issue in those days and my previous lawyer in fact actively discouraged me from filing my NIW until "closer to the end of my waiver".
If you have recieved any information to the contrary I would definitely be interested in knowing about it.

 

[hadron]

and my previous lawyer in fact actively discouraged me from filing my NIW until "closer to the end of my waiver".

Let me make a wild guess, this improved his odds of milking you for some more fees.

With every J1 waiver application for a PCP, there should be an accompanying I140 NIW. The paperwork is the same, the filing fees for an I140 are nominal. I can only suggest to anyone in a primary care specialty to read the NIW do it yourself thread and file an I140 themselves. It is actually possible to file the I140 once you sign the contract. If you can't get a 5 year contract from your employer, you just have to file an appropriate business plan with the goverment. It can all be done.

 

[labrd]

thank you hadron and J1victim for the input.
I am hoping to get permanent residency in canada aug 06/april 07. Should I file for CP in canada or India(indian citizen), what are the risks. which is quicker, or is it both 4months.

what is the status with premium processing for I140.

labrd
eb2 rir
pd may o3
labor cleared may 06
in process of applying for I140, thinking about cp v/s aos, thinking about the site of consulate.

 

[hadron]

Talk to an attorney about your plans to achieve canadian PR. I know that once you have a GC, you are not allowed to pursue PR with a different country. I don't know how it goes the other way around (to my knowledge, canada will yank your PR if they find out that you filed an I485 in the US).

 

[labrd]

I agree, my attorney by the way is Stephen Perlitsh in NY. Now he seems to be in a hurry all the time and is not very good in answering my questions. So far he has delivered the goods. Any thought about him, he has processed about 5 h1s and my labor certification so far.

Appreciate your input. I am sure you all understand my pain as i do the others.