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pending I-140 EA transferable?
- Thread starter NF-kappaB
- Start date
> I have filed I-140 NIW together with I-485/EAD concurrently
> and a separate I-140 EB1EA.
My wife had a similar case, and here is what a prominent immigration attorney as well as the information people at the VSC walkup window told me last week:
-- They will not transfer a concurrent I485 to a different service center or hook it up to a different I140 until the I140 it was filed with has been conclusively adjudicated.
-- In case your NIW gets approved, they can link the I485 to a different pending I140, (in your case the EA).
-- In case your NIW gets denied, your I485 gets denied in the same instant bc it doesn't have a legal basis anymore. It makes 'poof' and disappears into a cloud of white smoke as if it never existed.
-- According to VSC as well as some AILA liasion meetings it is NOW possible to file more than one concurrent I485 without fearing a penalty.
-- If you have filed a second 485s, and the first I140 gets approved, you can carry the priority date from that I485 over to the second one.
So in your case that means:
> In case the I-140 NIW gets denied, can I keep my I-485/EAD
> based on the I-140 EB1EA?
From what they told me NO.
But, you can file another I485 based on your EA case if maintaining status is an issue. But even if maintaining status is not an issue, then filing a second I485 might be a good idea bc you would lock in a better priority date for that one if the first case gets denied.
( Now, in my wife's case they fixed the problem of not beeing able to tie it to another I140 by approving the original NIW while we were in the car driving home....)
I hope that wasn't too confusing, but as you seem to have that 'extraordinary ability' I am confident you could follow me ;-)))
> and a separate I-140 EB1EA.
My wife had a similar case, and here is what a prominent immigration attorney as well as the information people at the VSC walkup window told me last week:
-- They will not transfer a concurrent I485 to a different service center or hook it up to a different I140 until the I140 it was filed with has been conclusively adjudicated.
-- In case your NIW gets approved, they can link the I485 to a different pending I140, (in your case the EA).
-- In case your NIW gets denied, your I485 gets denied in the same instant bc it doesn't have a legal basis anymore. It makes 'poof' and disappears into a cloud of white smoke as if it never existed.
-- According to VSC as well as some AILA liasion meetings it is NOW possible to file more than one concurrent I485 without fearing a penalty.
-- If you have filed a second 485s, and the first I140 gets approved, you can carry the priority date from that I485 over to the second one.
So in your case that means:
> In case the I-140 NIW gets denied, can I keep my I-485/EAD
> based on the I-140 EB1EA?
From what they told me NO.
But, you can file another I485 based on your EA case if maintaining status is an issue. But even if maintaining status is not an issue, then filing a second I485 might be a good idea bc you would lock in a better priority date for that one if the first case gets denied.
( Now, in my wife's case they fixed the problem of not beeing able to tie it to another I140 by approving the original NIW while we were in the car driving home....)
I hope that wasn't too confusing, but as you seem to have that 'extraordinary ability' I am confident you could follow me ;-)))
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Thanks, hadron. I haven't filed for "extraordinary ability in legal issues", but I think I can follow you....
For us maintaining status is an issue, our J1/J2 expires in Dec 04 and my employer has prepared an H1B/H4 application. So at least my wife would have to use her EAD to keep working and in case the I-140/I-485 NIW gets denied, she would be out of status back to Dec 2004, right? Given that processing might take well over 1 year, we would have a major problem. So thanks for the suggestion, I think we have no other choice than filing another I-485...
For us maintaining status is an issue, our J1/J2 expires in Dec 04 and my employer has prepared an H1B/H4 application. So at least my wife would have to use her EAD to keep working and in case the I-140/I-485 NIW gets denied, she would be out of status back to Dec 2004, right? Given that processing might take well over 1 year, we would have a major problem. So thanks for the suggestion, I think we have no other choice than filing another I-485...
I can't re-iterate it often enough. I think in terms of medicine I know what I am doing, regarding the law I am an educated amateur. This is the information I received hot of the press in a very similar case last week, but don't bank on it without advice from a good lawyer.
>But, you can file another I485 based on your EA case if maintaining status
>is an issue. But even if maintaining status is not an issue, then filing a
>second I485 might be a good idea bc you would lock in a better priority
>date for that one if the first case gets denied.
Hadron, I spoke to my lawyer and he did some research and told me it is not possible to have two I-485's (???).
Maybe he's not up to date....also he told me that using an EAD does not invalidate H status, which is in conflict with the opinion which I commonly find on this board....he has a good reputation though....
>is an issue. But even if maintaining status is not an issue, then filing a
>second I485 might be a good idea bc you would lock in a better priority
>date for that one if the first case gets denied.
Hadron, I spoke to my lawyer and he did some research and told me it is not possible to have two I-485's (???).
Maybe he's not up to date....also he told me that using an EAD does not invalidate H status, which is in conflict with the opinion which I commonly find on this board....he has a good reputation though....
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NF-kappaB said:>But, you can file another I485 based on your EA case if maintaining status
>is an issue. But even if maintaining status is not an issue, then filing a
>second I485 might be a good idea bc you would lock in a better priority
>date for that one if the first case gets denied.
Hadron, I spoke to my lawyer and he did some research and told me it is not possible to have two I-485's (???).
Maybe he's not up to date....also he told me that using an EAD does not invalidate H status, which is in conflict with the opinion which I commonly find on this board....he has a good reputation though....
According to my lawyer it is not possible to have two I-485 filed at the same time and using EAD does invalidate H status.
Honkman,
what you wrote makes the most sense to me with the little I know, maybe you have a better lawyer...
By any chance, did you discuss with your lawyer what happens if the I-140/I-485 on which the EAD is based on gets denied (in case of concurrent filing)? Another guy in this forum a while ago suggested that a previously existing H1B/H4 could be "reactivated" without filing a new H petition by a trip to the home country if conditions still apply.
And do you know what happens to the H status of a I-140/I-485 petitioner if a dependent uses EAD? Can the petitioner stay in H1B status?
Thoughts over thoughts...
what you wrote makes the most sense to me with the little I know, maybe you have a better lawyer...
By any chance, did you discuss with your lawyer what happens if the I-140/I-485 on which the EAD is based on gets denied (in case of concurrent filing)? Another guy in this forum a while ago suggested that a previously existing H1B/H4 could be "reactivated" without filing a new H petition by a trip to the home country if conditions still apply.
And do you know what happens to the H status of a I-140/I-485 petitioner if a dependent uses EAD? Can the petitioner stay in H1B status?
Thoughts over thoughts...
NF-kappaB said:Honkman,
what you wrote makes the most sense to me with the little I know, maybe you have a better lawyer...
By any chance, did you discuss with your lawyer what happens if the I-140/I-485 on which the EAD is based on gets denied (in case of concurrent filing)? Another guy in this forum a while ago suggested that a previously existing H1B/H4 could be "reactivated" without filing a new H petition by a trip to the home country if conditions still apply.
And do you know what happens to the H status of a I-140/I-485 petitioner if a dependent uses EAD? Can the petitioner stay in H1B status?
Thoughts over thoughts...
The lawyer once said that he recommend concurrent filing but keeping your H-1B as long as possible and don't use an EAD. He said that this is the main risk you take when using concurrent filing (we also discussed CP) that things can get really complicated when something gets denied. I am not a lawyer so this is just me view of the things: In the case you jump from H-1B to EAD with concurrent filing you have a really hard time to reactivate your H-1B ( and it wouldn't be reactivation but you have to apply for a new H-1B including possible problems with H-1B cap) and the lawyer didn't recommend using EAD. About your second question as far as I know you can stay in H status when your dependent uses EAD. But in the case something gets denied your dependent can't go back from EAD to H-4. By the way there is a difference between getting an EAD and using it. Just by getting an EAD you still remain in H-status.
P.S. Just out of curiosity, do you work as a biologist or chemist in the industry ? Your name indicates that you have something to do with signaling pathways/kinases.
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Thanks, honkman.
>But in the case something gets denied your dependent can't go back from
>EAD to H-4.
That's what I am worried about right now and my lawyer is not much of a help....I myself am fine with an H1-B (academic), but my wife might not make the cap this year since her her co. is very slow. So she might have to use EAD to keep her job (right now we are still on J1/J2). With "can't go back to H4" you mean that acc. to your info she would have to apply from scratch or it is not possible in general after having had an EAD? The other possibility is that she uses the EAD until Oct 2005 and tries to make the H1B cap next year, but this might not be possible too....
>P.S. Just out of curiosity, do you work as a biologist or chemist in the
>industry ? Your name indicates that you have something to do with
>signaling pathways/kinases.
Not completely correct. I am in academia and I am a physician by training. Worked with NF-kappa about 5 years ago ...kind of like the odd name...I am still doing signaling, but other pathways such as Gab2/PI3K or calcium channels...do you work in the same field?
>But in the case something gets denied your dependent can't go back from
>EAD to H-4.
That's what I am worried about right now and my lawyer is not much of a help....I myself am fine with an H1-B (academic), but my wife might not make the cap this year since her her co. is very slow. So she might have to use EAD to keep her job (right now we are still on J1/J2). With "can't go back to H4" you mean that acc. to your info she would have to apply from scratch or it is not possible in general after having had an EAD? The other possibility is that she uses the EAD until Oct 2005 and tries to make the H1B cap next year, but this might not be possible too....
>P.S. Just out of curiosity, do you work as a biologist or chemist in the
>industry ? Your name indicates that you have something to do with
>signaling pathways/kinases.
Not completely correct. I am in academia and I am a physician by training. Worked with NF-kappa about 5 years ago ...kind of like the odd name...I am still doing signaling, but other pathways such as Gab2/PI3K or calcium channels...do you work in the same field?
NF-kappaB said:Thanks, honkman.
>But in the case something gets denied your dependent can't go back from
>EAD to H-4.
That's what I am worried about right now and my lawyer is not much of a help....I myself am fine with an H1-B (academic), but my wife might not make the cap this year since her her co. is very slow. So she might have to use EAD to keep her job (right now we are still on J1/J2). With "can't go back to H4" you mean that acc. to your info she would have to apply from scratch or it is not possible in general after having had an EAD? The other possibility is that she uses the EAD until Oct 2005 and tries to make the H1B cap next year, but this might not be possible too....
>P.S. Just out of curiosity, do you work as a biologist or chemist in the
>industry ? Your name indicates that you have something to do with
>signaling pathways/kinases.
Not completely correct. I am in academia and I am a physician by training. Worked with NF-kappa about 5 years ago ...kind of like the odd name...I am still doing signaling, but other pathways such as Gab2/PI3K or calcium channels...do you work in the same field?
I am not 100% sure if she can again apply for H1B after she had EAD but I think she can't. Perhaps somebody else can give his/her opinion. What I found in the net:
http://www.immihelp.com/gc/aos/eadap_h1.html
Third paragraph from the bottom deals with this issue.
To answer your last question, I am a chemist working in research in the pharmaceutical industry in the field of kinases (AKT, mTOR, JNK etc.)
>I am not 100% sure if she can again apply for H1B after she had EAD but I
>think she can't.
I hope she gets her HI1B this year and we will not have to deal with these things. If not, I will find out through her company lawyer if that is possible and post it here. But if anybody knows already, it would be great to post it.
Honkman, nice coincidence. I am working on Akt too...
>think she can't.
I hope she gets her HI1B this year and we will not have to deal with these things. If not, I will find out through her company lawyer if that is possible and post it here. But if anybody knows already, it would be great to post it.
Honkman, nice coincidence. I am working on Akt too...