Inerview question- How did you apply for I-485s without having their priority dates current

[sarwarmd]

Jackolantern and TheRealCanadian,
I have tried to reach in the last week to my old employer who sponsored my GC. I had no success in getting any documents.

However I found some softcopy documents in some old backups on my PC. As per the old documents of Employment and Security from the State of New Hampshire, one letter says that labor application is received on 08/31/2004 and Alien Employment Certification in RIR recommended for approval to US Deptt of Labor/ETA on 09/20/2004. As per this fact, labor got approved within a month.

It's obviously true that no issues were encountered when they were submitted. But if the I-140 is EB3 India with a 2004 priority date, that is creating a big issue now.

You really do need to get your hands on a copy of the labor certification that was used for the I-140. I remain skeptical of the Aug 2004 priority date. If the I-140 says the priority date is Aug. 2004, that's probably a clerical error stemming from the labor substitution being requested in Aug 2004. When was the I-140 receipt date?

If the Aug. 2004 priority date is correct, that would indicate the occurrence of multiple unlikely events:
1. Labor certification approved within 4 months in 2004
2. Original employee abandons the process or is fired within that 4-month time frame, thus allowing you to use labor substitution
3. USCIS accepts your 3 derivative I-485s without current priority dates, then moves on to approve the green card and naturalization of one of those derivatives and doesn't notice any issue with the other two for more than 7 years

 

[Jackolantern]

However I found some softcopy documents in some old backups on my PC. As per the old documents of Employment and Security from the State of New Hampshire, one letter says that labor application is received on 08/31/2004 and Alien Employment Certification in RIR recommended for approval to US Deptt of Labor/ETA on 09/20/2004. As per this fact, labor got approved within a month.

That doesn't mean it was approved in a month. The labor certification was a two-stage process, first at the state level and then by the US DOL. The facts you just stated mean only the first stage was completed within a month.

Anyway, what matters in this case is when it was initially filed, as that establishes the priority date. For your wife and children to file a proper I-485 in June 2005 based on EB3, your priority date would have to be before June 2002.

But there is another possibility not yet discussed -- were you classified as a Schedule A worker? Back then there was a law that allowed taking unused employment-based green cards from prior years and adding them to a special quota for Schedule A. If you look at the June 2005 visa bulletin, you'll see a separate category for Schedule A, and it shows current across the board.
http://www.travel.state.gov/visa/bulletin/bulletin_2507.html

That special quota has since run out, so now those Schedule A workers get lumped in with the rest of EB3.

Based on everything so far it seems quite certain that you're in EB3 India, with a priority date of August 2004. If you're not in Schedule A, you'll need to naturalize and file a new I-130/I-485/I-693/etc. for your daughters, and stop hoping for the approval of their existing I-485s.

 

[sarwarmd]

That doesn't mean it was approved in a month. The labor certification was a two-stage process, first at the state level and then by the US DOL. The facts you just stated mean only the first stage was completed within a month.

Anyway, what matters in this case is when it was initially filed, as that establishes the priority date. For your wife and children to file a proper I-485 in June 2005 based on EB3, your priority date would have to be before June 2002.

But there is another possibility not yet discussed -- were you classified as a Schedule A worker? Back then there was a law that allowed taking unused employment-based green cards from prior years and adding them to a special quota for Schedule A. If you look at the June 2005 visa bulletin, you'll see a separate category for Schedule A, and it shows current across the board.
http://www.travel.state.gov/visa/bulletin/bulletin_2507.html

That special quota has since run out, so now those Schedule A workers get lumped in with the rest of EB3.

Based on everything so far it seems quite certain that you're in EB3 India, with a priority date of August 2004. If you're not in Schedule A, you'll need to naturalize and file a new I-130/I-485/I-693/etc. for your daughters, and stop hoping for the approval of their existing I-485s.

Jackolantern,
Thahks a lot for your response. My attorney recently indicated that had had applied our kids I-485s based on EB2 category of I-140. Original EB2 I-140 is approved in My-2006 which is after applying I-485s. It is the same I-140 which is converted to Eb3 in 2010.

I have not heard Schedule A category any time in the past. I am thinking of visiting my old company in the next week. I am not sure whether they will be willing to spend time or not but I will try in our kids interest.

At the same time, I am getting ready to apply new I-130/I-485/I-693/etc to avoid any delays from my side. I have alread started medical check ups for our kids.
I have my citizenship interview on 01/15. If I apply and send all the aplications on 01/16, by chance is there a possibility that I-130 and I-1485 can be approved within 10 days?
Our daughter is turning 18 on 01/27.

 

[Jackolantern]

Thahks a lot for your response. My attorney recently indicated that had had applied our kids I-485s based on EB2 category of I-140.

How is that possible? Earlier in the thread you said the EB2 I-140 has a priority date of 9/19/2005, which is later than the June 2005 filing date of your wife and children's I-485s.

I have my citizenship interview on 01/15. If I apply and send all the aplications on 01/16, by chance is there a possibility that I-130 and I-1485 can be approved within 10 days?

Impossible. It will probably take USCIS at least 10 days just for them to send the fingerprint notice. I've never heard of I-130 and I-485 both being approved in less than 2 months. Even if approved in less than 3 months you're lucky. A more reasonable expectation is 3.5 to 6 months.

You also can't send their new I-485 applications on 1/16 unless you get same-day oath or next-day oath. And if they haven't already been to the doctor for the medical, they probably won't get the results before 1/16.

 

[sarwarmd]

How is that possible? Earlier in the thread you said the EB2 I-140 has a priority date of 9/19/2005, which is later than the June 2005 filing date of your wife and children's I-485s.


Impossible. It will probably take USCIS at least 10 days just for them to send the fingerprint notice. I've never heard of I-130 and I-485 both being approved in less than 2 months. Even if approved in less than 3 months you're lucky. A more reasonable expectation is 3.5 to 6 months.

You also can't send their new I-485 applications on 1/16 unless you get same-day oath or next-day oath. And if they haven't already been to the doctor for the medical, they probably won't get the results before 1/16.

Jackolantern,
Thank you for your responses... I have already initiated medical reports process. Medical reports will be ready in the next couple of days.

Once I receive the receipt numbers of new I-485/I-130, I am thinking of following up with Senator or Congressman. This is not a straight forward task ad even this task needs some time.

Baltimore DO does lot of the same day naturalisation ceremonies but there is no guarantee.

 

[TheRealCanadian]

I'm puzzled how the EB2 I-140 got converted to EB3.

Honestly, this thing is sufficiently confusing and there's such a lack of agreed-upon facts that I would hold off until the children get their interview.

 

[sarwarmd]

I'm puzzled how the EB2 I-140 got converted to EB3.

Honestly, this thing is sufficiently confusing and there's such a lack of agreed-upon facts that I would hold off until the children get their interview.

TheRealCanadian,
Yes, this has caused lot of stress and confusion to many who worked on our applications.

I thought that I have mentioned that our kids have attended interview on 12-27-2012. When we went to attend InfoPass appointment on 12-27-2012, the officer arranged for an interview for my kids on I-485. On that day, officer must have consulted her Supervisor before arranging the interview. Her supervisor mentioned some time back in the beginning of Dec-2012 that we wrongly applied for I-485. At that time, I was arguing with her by thinking that she is unable to understand our cases. We had three InfoPass appointments in Dec-2012.

On EB-2 confusion, I am giving the steps in the sequence of order.

1) In Jan-Dec-2004, I was leaving and working alone in US.
2) In 08-2004 my labor applied in EB3.
3) In 09-2004 my labor is approved.
4) In 12/2004, my I-140, I-485, I-131, I-765 are applied concurrently based on priority dates of India/EB-3.

5) My wife, my two kids arrived from India in 05-2005.
6) The same attorney who applied my I-140 and I-485 now i 06-2005 applied for my wife, my kids I-485s.

7) The same attorney in 01-2006 now applied for new I-140 in EB2 category.
8) New EB-2 I-140 is approved in 05-2006. This is to speed up I-485s. For this new I-140 alone, attorney charged me $7,000=00.

9) In 08-2007, my I-485 and my wife I-485 are approved and our kids I-485s are seperated and remained pending for the approval. My I-485 and my wife I-485 are approved under EB3 category and before converting I-485s from EB3 to EB2.

10) During the period from 2007-2010, I contacted USCIS customer support anc couple more sources to look into our daughters I-485s. I did not get any result because I-485s are sittting in EB3 without going to EB2. During thist time, I encountered one immigration officer in Washington DC during one survey on USCIS web site development. I my self do not know who is this officer. There is a posssibility that this immigration officer is a senior officer from USCIS DC office. He promised me to look into our daughters pending I-485s. After meeting this officer, I use to get one follow up from a lady officer of USCIS-DC. This process took few months in 2010. In 07-2010, USCIS converted I-140 from EB2 to EB3 which is approved in the step (8).

11) In 2011, the issue of not having Greencard for our daughters becase severe for our elder daughter's college admission.
12) In the last quarter of 2011, I contacted Mr. Rajiv Khanna and Mrs. Murthy's team to take different opinions.
13) In 11-2011, I came to know the details on the step (10) when I contacted the senator of my area.


14) In 01-2012, my wife applied I-130s for my kids by anticipating EB3 priority dates. At this time, we are not aware of validity of pending I-485s.

15) In 11-2012, my wife became a citizen.
16) After 11-2012, now we are trying to convert pending I-485s to family based using I-130s applied in 2012.

 

[sarwarmd]

Today I went to see my old company who sponsored my GC

Today I went to the see the legal department of my old company who sponsored my GC. I explained them our daughter's situation.
After listening to me completely, they said that they will try to provide three documents which might be helpful to me. They also said that I need to work with my old attorney who filed our I-485s.

Now I am suppose to check with them on this Thursday i.e. on 01-10-2013. They did not mention that what kind of documents, they are going to provide but they will provide three documents to me.
They are also going to help me in having talks with me my old attorney.

 

[sarwarmd]

How to fill "Have you ever file Permanent Residence status"?

I have contacted my old employer who filed my GC. It seems that I have full cooperation from them. They tried to help me but they could not find my labor certifications in relation to my 2004 I-140. My old company had several changes since 2004. That includes their acting attorneys. Actually my attorney who filed my I-485 use to be their attorney too but not any more.

The same attorney is out of the country now. I am not sure when he is going to come back to US.

In the mean time, I have question on newly filing I-485. In Part 3 which is Processing Information-PART. This has the following column.

--------------------------------
"Have you ever applied for Permanent Residence statUs in US?"

Our answer: 06-29-2005, I-485 is pending at USCIS, Baltimore DO office.
--------------------------------
I am thinking that by writing like that applications acceptance centre may forward the application directly to USCIS, Baltimore DO office and that might help in speeding up the application.

What do you think about it?

 

[Jackolantern]

--------------------------------
"Have you ever applied for Permanent Residence statUs in US?"

Our answer: 06-29-2005, I-485 is pending at USCIS, Baltimore DO office.
--------------------------------
I am thinking that by writing like that applications acceptance centre may forward the application directly to USCIS, Baltimore DO office and that might help in speeding up the application.

Good answer. Also make sure to write their existing A# from the pending I-485 on the new I-485 and any other form that asks for A#. Otherwise USCIS may unnecessarily generate a new A# for them which can result in delays later on.

 

[sarwarmd]

Good answer. Also make sure to write their existing A# from the pending I-485 on the new I-485 and any other form that asks for A#. Otherwise USCIS may unnecessarily generate a new A# for them which can result in delays later on.

Thank you Jackolantern....
A # column was there on the first page and on G-325. Now I am writing again alongwith the above description.

 

[sarwarmd]

Old attorney would like to have a direct InfoPass appointment

I am in touch with my old attorney who had filed our I-485s. She would like to attend InfoPass appointment directly. She has asked all of our family members to meet her tomorrow i.e. on 01-11-2013. She is speaking as if there is no mistake in I-485 filings.

 

[sarwarmd]

Receipt date will be the following valid current priority date

Today we have met the attorney who filed our I-485s. As per her, USCIS should not have accepted I-485s in 06-2005.

Since I-485s are accepted by mistakenly, it is USCIS error. But now USCIS need to treat the same I-485s as if these are applied in the following date when EB-3/India priority dates became current. That is happened in 07-2007. Now USICS need to treat I-485s as if I-485s are received in 07/2007 instead of actually applied in 06-2005.

She is willing to attend InfoPass appointment to discuss with Immigration Officer. By keeping that in mind, now USCIS can appove the pending I-485s. Do you think that USCIS might consider her argument?
What are the chances or any thoughts on this?

 

[voldemarv]

I'm not an attorney and I'm not USCIS officer. Just my opinion - chances are slim to nothing. There were cases when 485 was accepted when PD was not current. Cases were denied.

 

[sarwarmd]

I'm not an attorney and I'm not USCIS officer. Just my opinion - chances are slim to nothing. There were cases when 485 was accepted when PD was not current. Cases were denied.

Thank you voldemarv for sharing your views. Today my attorney who filed our I-485s is having InfoPass appointment. Let me see that how does it go.

 

[Jackolantern]

Since I-485s are accepted by mistakenly, it is USCIS error. But now USCIS need to treat the same I-485s as if these are applied in the following date when EB-3/India priority dates became current. That is happened in 07-2007. Now USICS need to treat I-485s as if I-485s are received in 07/2007 instead of actually applied in 06-2005.

That is very very unlikely to succeed. Even if USCIS could and would accept that interpretation, their existing I-485s still couldn't be approved as derivatives anytime soon, as they're a long way from being current. So to make use of those old I-485s, they'd have to be interfiled to your wife's I-130 petitions.

But then your wife's citizenship is tainted by the fact that her green card was approved in error, which could lead to denial of your daughters' I-485s if attached to the petitions filed by your wife. Your green card is the only untainted one, so it's better if their new I-485s are connected to your I-130s.

 

[Jackolantern]

Today my attorney who filed our I-485s is having InfoPass appointment. Let me see that how does it go.

The Infopass was 2 days ago, what happened there?

 

[sarwarmd]

The Infopass was 2 days ago, what happened there?

Jackolantern,
Thanks for following up our cases.
On the same day, I had my naturalisation interview. I passed and attended the same day ceremony.

At the same time, my old attorney, my wife and my daughter attended InfoPass appointment. Immigration Officer informed that DO office is in the process of writing a paper letter to us. As per that we will need to file a new 485s for our daughters.
To avoid delays, we have already sent new 485 applications to Chicago lockbox facility.
if we receive the receipt numbers, we are planning to follow up with the same DO office. Our daughter is reaching 18th birth day on 01-27.

It is a tough call. Our old attorney is helping. We are giving the best shot.
Fedex online status shows that application packet has reached Chicago facility.
Thank you again..

 

[Jackolantern]

To avoid delays, we have already sent new 485 applications to Chicago lockbox facility.

Are those new I-485s based on new I-130s filed by you, or are they based on the old I-130s filed by your wife?

 

[sarwarmd]

Are those new I-485s based on new I-130s filed by you, or are they based on the old I-130s filed by your wife?

Jackolantern.
These I-485s are based on old I-130 which are already approved. This is what recommended by DO office when my attorney had an infopass appointment on 01.15.2013.