Need some info about NIW/EAD/LC

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gcby2020

Registered Users (C)
Need some help over here

I need some help. I am practicing in HPSA in New York for last few years on H1B (never was on J1). I have applied for labor certification in 2001. With all the mess in DOL, my LC is not likely to happen for atleast one more year. Meanwhile encouraged by this site, I have applied for NIW in 10/04 since I have been practicing in HPSA (I complete my five years in June 2005). OUr AP has been approved and FP is to be done next week. One of the prime reasons I have applied for NIW is for my wife to get EAD so that she can start working. Since I am on H1B I am anticipating that USCIS will insist on working for five more years after my 1-140 approval (which may be happen in 2006). I have absolutely no plans to work with my current employer till 2011. My plan is to withdraw my NIW application once my labor cert is done. Here are questions:

1) My wife may get her EAD in next couple of weeks. If she decides to use her EAD for work, what happens to her current H4 status? CAn she continue to remain in H4 while working using EAD? I am planning to continue with my H1B status till I get my GC (if that ever happens). I have absolutely no plans of using my EAD.

2) At what stage can one withdraw application for NIW? As I said above I want to withdraw my application for NIW as soon as my labor cert goes through. Am i doing illegal over here with this plan? Can one withdraw NIW application after I-140 has been approved?

3) Our advance parole has been approved. What does that mean. Does it have any bearing on the future decisions on EAD/I-485/I140. What I want to know is that since AP has been approved, does that mean I-140/EAD/1-485 will be approved.

Do you know anyone who has applied for LC and NIW at the same time and later on either withdrawn either the LC or NIW later on depending upon which route gives the GC fastest?

Any info on this will be helpful.
 
> If she decides to use her EAD for work, what happens to her
> current H4 status?

She changes to 'adjustee' status. Downside, if something untoward happens to your I140 she would fall out of status in a hurry. If she has a valid H4 stamp, she can leave and re-enter the US on that. If she doesn't she would have to use AP.

> 2) At what stage can one withdraw application for NIW? As I said
> above I want to withdraw my application for NIW as soon as my labor
> cert goes through. Am i doing illegal over here with this plan? Can
> one withdraw NIW application after I-140 has been approved?

You can withdraw whatever you want. You just have to make sure that your wife has a legal status (e.g. back to H4 through leave and re-entry) when you do that.

> 3) Our advance parole has been approved. What does that mean.

Have they mailed it to you ?

> since AP has been approved, does that mean I-140/EAD/1-485
> will be approved.

No it doesn't, it just means they have come around to approve it. It is a different department from the I485/I140 queue.

AP is the same type of benefit as the EAD. It rides piggyback on your pending I485 and allows you to leave and re-enter the country while your I485 is pending. (talk to your attorney about the difference of beeing admitted as a 'parolee' vs entering on a non-immigrant visa. I don't know it off hand, but it can make a difference if ever you have trouble with your immigration case or the law)


You can switch one approved I140 for another one. You can't switch a pending I140 for a different one. (Some people say you can't switch any I140's anymore.) Advantage of switching is that you can keep the priority date of your I485 which can make a difference depending on how backlogged they are.

You CAN file a second set of I485s with the LC based petition. It will create a nightmarish back and forth of fingerprint and approval notices, but it is apparently legal. Downside is that you loose your initial priority date.


-------------------------------------
Again, I don't ask my attorney for medical advice, so nobody should take whatever I say as legal advice.
 
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Thanx Hadron

Thanx Hadron for the response. MY wife's EAD has been approved. Also both of us went for Code3 FP/photo today. What does code3 mean?
I am amazed with the growing efficiency of USCIS. Within hour of FP my LUD for i-485 shows today's updated.

I have run into one problem. WHen I applied for I-140/485 together I did not retain a copy of my I140 EAC#. The problem is that I never received 797 for I140. SO I have no reciept notice for I-140 (I have efiled it over six months back). Calling NSC doesnt really help since I do not have the EAC#. What should I do. Refile I-140?? Does anybody know whether one person adjuicates both I-140 and 485 or are there different departments. I am not sure whether there has been a computer glitch and thats why I never recieved 797 or they do have my I140 on their system and will be eventually able to retieve it through the I140 EAC number included in the application.

Any thoughts??
 
> Calling NSC doesnt really help

It doesn't really help period. Did you notice that in the meantime you can only talk to the robot. No more life person there. Given how useless these folks were anyway not a big loss.

> since I do not have the EAC#. What should I do. Refile I-140??

By God, no ! Two options:
- Did you write the check for the I140 filing fee ? If yes, get a copy of the check from your bank (they keep them on microfiche) and look on the reverse side. This is where you will find the EAC
- If that doesn't work, file a 'freedom of information act' request with VSC. As this I140 is an official record they are required to give you a copy of it if you are asking for it. (search under 'FOIA' in other areas of immigrationportal, you will find info on it there.)

> Does anybody know whether one person adjuicates both I-140 and 485
> or are there different departments.

It used to be separate departments. Then came concurrent filing and after some consultant who charged $20mill told them that it doesn't make sense to do the work twice, they supposedly cross-trained the I140 adjudicators to process I485s and vice versa. After that ended up in gigantic confusion, rumor has it that they separated the functions again :-)) Your tax $$ at work

> I am not sure whether there has been a computer glitch and thats why
> I never recieved 797 or they do have my I140 on their system and will
> be eventually able to retieve it through the I140 EAC number included
> in the application.

Although the file in concurrent cases is supposed to stay together, I believe they still issue two separate receipt notices. Maybe it got lost in the mail.
 
> how do you know so much about immigration law?

Reading up and helping some relatives to navigate the treacherous minefield of physician employment based immigration.

All this is fueled by a profound hatred of the American Medical Association. Anytime, the US reached a point when the physician supply started to improve, they lobbied congress to throw another wrench into physician immigration (or have you ever heard of a foreign engineering PhD being forced into bonded servitude for 3 years to work off his debt to society ?)
 
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