NIW Denied by NSC - EB1-OR Pending at NSC

A

alkhemist_03

Registered Users (C)
Hi all,

My NIW application was denied today. I got an RFE on the NIW on Feb 05, 2008. See the post below for more details on the RFE and my qualifications.

http://www.immigrationportal.com/showthread.php?t=274175

My I-485 filed concurrently with the NIW was also denied today despite the fact that I have a pending EB1-OR application. Anticipating the denial of NIW, I filed this EB1-OR petition on April 04, 08. See thread below for more details.

http://www.immigrationportal.com/showthread.php?t=274629

I am in a state of limbo right now since I do not have a pending I-485 and I do not have any underlying status i.e. H-1 or other work visa.

My lawyer says that he will file a motion to re-open the I-485 and try to link it to the pending EB1-OR application. He said that thats my legal right. I am not sure how difficult or easy it is to do that.

Has anybody gone through this "re-linking" process? Is it even possible?

Also, I have not much hope now for the EB1-OR application since they denied the less stringent NIW. I am thinking of filing an EB2 (employer sponsored) application and take the standard track of labor certification and so on.

Any comments or advice would be helpful.

Thanks in advance.
 
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EB1-OR is actually much easier than NIW, as long your employer qualifies (research institution). I think with I-145 you mean I-485. Re-linking the I-485 that was linked to a denied I-140 with a I-140 that was filed later is a gray area. Sometimes it works, sometimes it does not. If your MTR gets denied, you have to get a non-immigrant status with dual intent (H/O/L) and leave the US to restore your status. With the denial of the I-485 they might start your deportation process, so make sure to resolve all of this quickly.
 
nscagony,

thanks for your response. This is really worrisome. My lawyer says he will file the MTR for I-485 as soon as the denial notice arrive - I just have the email from CRIS for now.

The other option is to file a fresh I-485 for the EB1-OR I-140. Which one do you think is more feasible of the two options?

Also, how long before they start deportation process and how often do they do that?

Thanks
 
I'm so sorry to hear about this - but hopefully the MTR will resolve this problem for you. It is also possible that the NIW denial is based on a misunderstanding (e.g. the officer assumed that the extra publications you submitted were published AFTER your priority date - it's happened before - so you may be able to appeal the NIW itself as well depending on what the denial letter states).

I understand your predicament because I, like you, have no underlying status yet I have my family here and a house that we purchased that will be impossible to re-sell in the current market - I have great hope that you'll be able to link your I-485 to your pending EB1-B and will be okay from there! Good luck!
 
As long your attorney appeals the I-485 denial along with the I-140 denial they won't try to deport you. NSC is pretty random about NIWs. The motion to reconsider (MTR) is definitively a good idea. The appeal itself might be a bad idea. It takes forever (1 year+) and is almost denied. On top of that they won't touch any other I-140 from you until the appeal is over. Can you somehow switch to a dual-intent non-immigrant status while you are working to resolve the situation? That would give you a lot more options and a safety net.
 
jk0274,

Thank you for your response and kind words. It is really unfortunate that we have to go through this tedious and highly uncertain process. Good luck to you as well.
 
nscagony,

If I read you correctly, an MTR on the I-485 only would not hamper my ability to file for other green card applications but if i file an appeal on I-140 along with the MTR, I may not be able to file other I-140s. The downside to filing only the MTR on I-485 and not the appeal is that I am unprotected from deportation?

As for obtaining other dual intent visas, I have missed this years window for filing the H-1. The only other option is to file for an O-1. My lawyer says that I can qualify for that but right now I have little faith in that. Can you think of any other ones.

One other option I have is that my employer is willing to sponsor a standard EB2 application. The only down side is that takes about 3 to 4 months to get to through the labor certification. But at least it is a sure shot deal provided nothing else goes wrong. Do you think it is feasible to start that track on the side?

Thanks for all your insights.
 
nscagony said:
As long your attorney appeals the I-485 denial along with the I-140 denial they won't try to deport you. NSC is pretty random about NIWs. The motion to reconsider (MTR) is definitively a good idea. The appeal itself might be a bad idea. It takes forever (1 year+) and is almost denied. On top of that they won't touch any other I-140 from you until the appeal is over. Can you somehow switch to a dual-intent non-immigrant status while you are working to resolve the situation? That would give you a lot more options and a safety net.
Click to expand...

Thats something - I didnt know that. I guess we learn something new everyday.

I am really sorry to hear about your situation - I hope your MTR will give you some breathing space.
 
How about reapplying I-485 (doesnt take long) - even with or without medical to connect your I-140 OR. Thsi way atleast you will have some legal status.
 
You have to be in valid non-immigrant status to apply for AOS. Since he is out of status now, the I-485 would be denied immediately. Try the O-1 route. That seems the quickest fix, especially with premium processing. Are you working for a non-profit? (University etc). In that case your H1 is not subject to quota. L is the only other dual intent visa but that unlikely to apply to you.
 
Friends,

I have been consulting other lawyers to find the solution to my current situation. I had the following options.

1- File an MTR on the denied 485 and interlink it to the pending EB1-OR 140.
2- File a fresh I-485 for the EB1-OR 140
3- File an O-1 visa and if approved, pick it up outside the US.

It turns out that all of the above can run into problems given my situation. I have consulted with other lawyers and here are their conclusions.

1- The MTR option is infeasible because it is only applicable to the context in which the 485 application was denied. In my case, the context is the denied NIW application. For example, the MTR on 485 could be feasible if my NIW 140 is appealed. It may not work for "interfiling" with a completely separate application (EB1-OR).

2- As nscagony pointed out, I am not in a valid non-immigrant status, therefore a fresh 485 cannot be filed. There is however this section called 245(k) which pardons for time out of status and allows to adjust status if out of status period is 180 days or less. One lawyer told me that 245(k) is only applicable if you have maintained a valid non-immigrant status before falling out of status. Since I have not done that, my time out of status will be counted from when I first filed an AOS application. This time is greater than 180 days.

3- The O-1 visa is problematic because I have to go pick it up from my country of origin and thats not a good proposition due to extremely lengthy security checks. It could take more than 6 months. Above all, this is assuming that I get approved for an O-1 visa.

I work for a start-up company and not a university otherwise I would have switched to a university H-1 visa.

My case has gotten very complicated and I don't have many options right now. Part of it is because of my own ignorance and not knowing that I could have filed for an H-1 visa while my NIW was pending. I don't want to blame my lawyer for the denied NIW but he surely could have created a safety net by advising me to file an H-1.

Anyways, this is all water under the bridge.
 
If I understand 245(k) correctly it forgives being out of status in the past, but you still must be in status as of filing. But people seem to have different readings on that.

Since (1) and (2) are out of the question, give (3) a shot. A college of mine from Iran got his visa stamp renewal within 2 weeks in Canada. If an Iranian can get cleared in 2 weeks, it can't be much worse for whatever country you are from. They seem to have improved the process. Also, for O visas they give you a lot less runaround than for H since the standard is much higher to get the petition approved in the first place. Let us know what you decided to do.

Btw, my lawyer told me I can go ahead and use EAD/AP even before I-140/NIW was approved (I was and I am on H1 right now). They seem to be quite confident of their own work. You are the living proof that that can backfire.
 
nscagony,

Given the emotional turmoil I have gone through in the past few days, I have decided to completely abandon the employment based route. I have a respectable degree and scholarly contributions and my employer is 100% behind me. But my ignorance and over confidence of my lawyer has made it almost impossible to get a green card that way.

Instead, I am going to pursue the marriage based green card. My girl friend is a US citizen and our relationship was headed in the direction of marriage anyway. That has been sped up due to the whim of an officer at INS
 
LOL, well congratulations! :) The I-130/I-485 route should have you in GC status in 6 month and you can be a citizen in 3 years plus change. On top of that all your overstay/out of status issues are irrelevant, so its all good.
 
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