In my previous posts I mentioned a problem I had with the petitioner of my NIW application. Here is an update.
Brief background:
By regulations (8 CFR 204.5(k)(1)) when EB2-NIW application is filed "the alien, or anyone in the alien\'s behalf, may be the petitioner". Usually, the petitioner is either alien himself or his employer. In my case a friend of mine signed the Part 8 of my I-140. This friend is not my or anyone else\'s employer.
Later, this fact was a said reason for refusals to take my case by several attorneys. They said, nevertheless the regulations say "anyone", the INS will view the petitioner as my employer, and even if they approve I-140 by mistake, they will deny application later in AOS or CP.
I consulted several other lawyers, and it is clear for me now that the situation is very rare and none of them actually knows the answer. (Why the hell didn\'t I sign the petition myself??) The attorney I hired now (one of those famous and well-known) said that she has never had such a case in 20 years, but thinks the law is on our side, and it is worth a shot and new experience for her (very reassuring, isn\'t it?
).
To be absolutely guaranteed I will probably file another NIW petition as a backup with myself as the petitioner (processing times for I-485 will allow to do this several times
)). Although I am positive that the INS should approve the first one, it is not worth experimenting with them or establishing a precedent for future generations. So if you are in this situation, file a new I-140 while keeping the old one.
ooa
Brief background:
By regulations (8 CFR 204.5(k)(1)) when EB2-NIW application is filed "the alien, or anyone in the alien\'s behalf, may be the petitioner". Usually, the petitioner is either alien himself or his employer. In my case a friend of mine signed the Part 8 of my I-140. This friend is not my or anyone else\'s employer.
Later, this fact was a said reason for refusals to take my case by several attorneys. They said, nevertheless the regulations say "anyone", the INS will view the petitioner as my employer, and even if they approve I-140 by mistake, they will deny application later in AOS or CP.
I consulted several other lawyers, and it is clear for me now that the situation is very rare and none of them actually knows the answer. (Why the hell didn\'t I sign the petition myself??) The attorney I hired now (one of those famous and well-known) said that she has never had such a case in 20 years, but thinks the law is on our side, and it is worth a shot and new experience for her (very reassuring, isn\'t it?
). To be absolutely guaranteed I will probably file another NIW petition as a backup with myself as the petitioner (processing times for I-485 will allow to do this several times
)). Although I am positive that the INS should approve the first one, it is not worth experimenting with them or establishing a precedent for future generations. So if you are in this situation, file a new I-140 while keeping the old one.ooa