Multiple 485 scenario....Any thoughts???

A

an_anonymous

Registered Users (C)
All,

I would appreciate any thoughts on the following scenario:

Currently 140 and 485 (filed concurrently) pending with one Service Center (say CSC). EAD/AP approved and FP done. Both 140 and 485 are still pending but crossed 180 days of filing.

If for any reason, one loses job (from the sponsoring company) and starts the GC from scratch, when you reach the 140+485 filing time again with a different service center (say VSC this time) and if your first applications are still not adjudicated, what should one do?

I know that we can have multiple 140s from two different employers...but since 485 is our application, Can the applicant file for multiple 485s (please note that the first one is still pending with CSC)....or can they still transfer the first 485 since a lot has been achieved with that...like EAD/AP/FP/Medicals etc...

Any thoughts???
 
Apparently there has been an (unpublished) change in policy and procedures. According to the (now extinct) VSC walkup window as well as information from the AILA liasion meeting, you can have two concurrent I485 pending but you will only be able to receive one GC.
If the I140 on the first one is approved, you can carry the notice date over to the second one.
If the first I140 is denied you can't carry the benefits from the initial filing over.

All this doesn't make too much sense, but that is the information I received in a similar case.

(blablabla, not a lawyer, talk to one, this is just information given to me blabalab)
 
Same benefits can be achieved by just filing the I-140. In case first I-140 is denied you can show a pending or approved I-140 from other company and continue the processing of I-485. By changing the just underlying I-140 you will be saving all the fees associated with I-485 , medical and attorney fees for both primary and dependents.
 
response to tammy2

what if the second 140 is denied and shortly there after your 485 is denied...before you can even make a case that there is another (pending or) approved 140 (I am in this situaion as we speak) .... any input from anyone??? as I am in the middle of figuring out myself what to do?
 
rdip said:
what if the second 140 is denied and shortly there after your 485 is denied...before you can even make a case that there is another (pending or) approved 140 (I am in this situaion as we speak) .... any input from anyone??? as I am in the middle of figuring out myself what to do?
Click to expand...

Since your I-485 was based on first I-140, denial of second I-140 is irrelevant. If both are denied you cannot do anything.
 
> Same benefits can be achieved by just filing the I-140. In case
> first I-140 is denied you can show a pending or approved
> I-140 from other company and continue the processing of I-485.

No you can't. The problem is that the first I485 makes 'poof' and disappears into a small cloud of white smoke the same second as the initial I140 gets denied. With the automatic denial (w/o NOID) of the initial I485 all the attached benefits (EAD/AP/priority date) go down the drain. (If you have a H1b or other valid work visa that is not a problem, but if you depend on the pending I485 for your EAD and status you are in deep trouble.)

They will NOT change a concurrently filed I485 to a different I140 unless the initial I140 has been adjudicated.
 
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hadron said:
> Same benefits can be achieved by just filing the I-140. In case
> first I-140 is denied you can show a pending or approved
> I-140 from other company and continue the processing of I-485.

No you can't. The problem is that the first I485 makes 'poof' and disappears into a small cloud of white smoke the same second as the initial I140 gets denied. With the automatic denial (w/o NOID) of the initial I485 all the attached benefits (EAD/AP/priority date) go down the drain. (If you have a H1b or other valid work visa that is not a problem, but if you depend on the pending I485 for your EAD and status you are in deep trouble.)

They will NOT change a concurrently filed I485 to a different I140 unless the initial I140 has been adjudicated.
Click to expand...
Swapping of I-140 is always allowed. Even the denial notice for I-485 contains the clause 'Since you do not have any pending immigrant petition this I-485 is denied'
So if you show any other pending I-140 you should be fine. Actually filing second I-485 is never encouraged by the some famous attorneys. Usually second I-140 is filed with CP option.

Believe me. I am passed through that situation and had big consultations regarding this issue. They are of the opinion that this may raise the issue of intent if audited. You cannot have the multiple intent at a time. Filing I-485 needs the intent of joining that company. hence it might lead to lying under oath.

You can get more info if you search Sheela Murthy's chats.
 
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reply2 to tammy2

Hey Tammy regarding 'Since you do not have any pending immigrant petition this I-485 is denied' ..what if there is no pending 140 but an approved one (as this is what exactly has happened to me). First 140 approved few months ago (eb1ea) but second 140(niw) denied and the same day 485 denied When 485 was filed it was requested that both 140's (filed at the same service center) be considered in its support (in line with what you mention that some famous attorneys do not recommend filing TWO separate 485's). However, the INS never linked the 485 to approved eb1ea and denied it at the time of denying niw 140. I have the 485 denial notice which reads exactly what you said. Any suggestions/advice to expedite correction of such problem ... or does one need to file 485 all over again?
 
rdip said:
Hey Tammy regarding 'Since you do not have any pending immigrant petition this I-485 is denied' ..what if there is no pending 140 but an approved one (as this is what exactly has happened to me). First 140 approved few months ago (eb1ea) but second 140(niw) denied and the same day 485 denied When 485 was filed it was requested that both 140's (filed at the same service center) be considered in its support (in line with what you mention that some famous attorneys do not recommend filing TWO separate 485's). However, the INS never linked the 485 to approved eb1ea and denied it at the time of denying niw 140. I have the 485 denial notice which reads exactly what you said. Any suggestions/advice to expedite correction of such problem ... or does one need to file 485 all over again?
Click to expand...

When did this happen? You cannot show two I-140s for one I-485 application. But after the denial of the I-140 (NIW) you should have filed MTR. showing the approved I-140.
I do not know how it works in case EB1 where there is no employer sponsorship. But I-140 based upon the labor filing two I-485s brings in conflict of intents. This was opinion of the attorney with whom I spoke.
 
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rdip said:
However, the INS never linked the 485 to approved eb1ea and denied it at the time of denying niw 140. I have the 485 denial notice which reads exactly what you said.
Click to expand...

The correct procedure in such a situation is to file a Motion to Reconsider pointing out the approved I-140 and requesting amendment of your I-485 based on that approved petition. The EAD/AP and priority dates will all be retained.

You have only 30 days after the date of denial to file an MTR. After that point you'll need to file a new I-485.
 
reply to therealcanadian

what if the MTR is not addressed soon and given my EAD running out in about 4 months ...I am concerned I might not be able to get an extansion as if the MTR is not adjudicated I might not get my EAD extension (as there will be no underlying pending 485 in the system). Any thoughts? Do they even issue receipts for MTR's?
 
rdip said:
what if the MTR is not addressed soon and given my EAD running out in about 4 months ...I am concerned I might not be able to get an extansion as if the MTR is not adjudicated I might not get my EAD extension (as there will be no underlying pending 485 in the system). Any thoughts? Do they even issue receipts for MTR's?
Click to expand...

If your I-485 was denied subsiquently your EAD is also invalid.How come you are working on EAD?

Uness you file for an MTR or re-file I-485 you cannot get an EAD
 
> Swapping of I-140 is always allowed.

You can swap an approved I140 for another approved I140.
Once your first I140 is denied, the concurrent I485 is nil, like it never existed. You would have to file a MTR (good luck).

> Actually filing second I-485 is never encouraged by the some
> famous attorneys. Usually second I-140 is filed with CP option.

Attorneys have (informed) opinions and experience, they don't own truth. The advice I was given is, as I mentioned, from VSC as well as from an AILA liasion meeting one of my attorneys was at.

Apparently CIS looked at simultaneous AOS filings very negatively in the past (the old times, when you had an approved I140 in hand when you applied for AOS). Somewhere in the process of ironing out the quirks of concurrent filing they apparently changed their policy on simultaneous concurrent I485s.

The intent question might be an issue in LC based cases. In the NIW, OR vs EA scenario there is usually no conflict. You intend to work in your area of research, that's it.

I was also advised to withdraw all other I140s once the first one is approved. There is a school of thought in CIS that the LAST immigration petition they adjudicate is the one determining you ability to immigrate.
 
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hadron said:
You can swap an approved I140 for another approved I140.
Click to expand...

Uh, no. Your I-485 is kept alive by being the beneficiary of an approved or pending I-140. You can certainly swap an approved I-140 for a pending one, or vice versa.

Somewhere in the process of ironing out the quirks of concurrent filing they apparently changed their policy on simultaneous concurrent I485s.
Click to expand...

Do you have statute, regulation or memoranum you can cite?

I was also advised to withdraw all other I140s once the first one is approved.
Click to expand...

As the alien is not a party to the I-140 (except in EA or NIW cases) they cannot withdraw any I-140s that they did not petition for.

There is a school of thought in CIS that the LAST immigration petition they adjudicate is the one determining you ability to immigrate.
Click to expand...

I posted a question about this earlier. If I have an approved EB3 I-140, and then I file an NIW I-140 that gets rejected, how does this invalidate the EB I-140 that I have?
 
> Uh, no. Your I-485 is kept alive by being the beneficiary of an
> approved or pending I-140. You can certainly swap an approved
> I-140 for a pending one, or vice versa.

For what its worth:
My attorney tried to do the 'vice versa' scenario and it was denied. Once the first I140 got approved, the service did the swap without a problem.

> Do you have statute, regulation or memoranum you can cite?

That's why I don't make $300 an hour, I don't.

> As the alien is not a party to the I-140 (except in EA or NIW cases)

rdip's case was about EA/NIW. It might be different in employer based cases.

> I posted a question about this earlier. If I have an approved EB3
> I-140, and then I file an NIW I-140 that gets rejected, how does
> this invalidate the EB I-140 that I have?

As I said, this is something I ran accross in the past and something that was recommended to me. I don't think it is one I140 affecting the other but rather an issue of which I140 an I485 is getting its legal basis from.
 
Why don't you ask this same question to fan-law. com, and visalaw.com. Those attorneys do take questions on line, and give you short answers without charge.
You will have two attorneys oppinions on top of other people experiences.

Do you have any document at all that the I-485 was intended to be tied with both I-140 applications. If so go ahead and submit it with MTR, but if it was me, I was not going to hold my breath at it.

Refiling again although painful and exspensive it almost sounds like a good idea. After all your I-485 file is together. Good luck.
 
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