Possible to transfer EB3 485 to EB2?

[fmntguy]

We applied for EB3 I485 9 months ago through my wife's company. The I140 is approved. Our priority date is April 2002. We have our EAD and AP based on this 485.

In the meantime, my EB2 LCA and I140 got approved as well through my company. My priority date is now current for this EB2 application.

Given that each person can only have one 485 application in the system, what are our best options?

Some questions:

1. Can we transfer our EB3 485 filed through my wife's company to my EB2 140? If yes, how?

2. If we do transfer, what will happen to our existing EAD and AP; will they still be valid, since we need them for continuing our employment.

3. Are there any risks involved in the transfer?

4. Another option is to file a brand new 485 against my EB2, which seems riskier. Again what happens to EAD & AP in this case?

5. If we do nothing when are we likely to get our GC based on the existing EB3 priority date of April 2002? The current date for India seems to be March 2001.

Have you been through this transfer process before or do you know of anyone who has done the same, if so please advise.


Thanks.

 

[fmntguy]

Gurus, please help! Is this a interfiling situation?

I was searching the forums and came across this post: http://immigrationportal.com/showthread.php?t=162606

This seems similar but is not exactly ...
In my case the primary of current pending EB3 485 is my wife and for EB2 I would be the primary. In the attached thread seems like its same person moving from EB3 to EB2.

Gurus, need your help here. My lawyers say they have not seen this case before! What are my options??? Is interfiling possible or do I need to filing new 485?

 

[ginnu]

We applied for EB3 I485 9 months ago through my wife's company. The I140 is approved. Our priority date is April 2002. We have our EAD and AP based on this 485.

In the meantime, my EB2 LCA and I140 got approved as well through my company. My priority date is now current for this EB2 application.
--------------- If you wish you can file second I-485 based on YOUR I-140
OR
Can request USCIS to approve the earlier filed I-485 by interfiling new I-140 approval copy and requesting that YOU are primary (as you know the USCIS it may delay the process and you need very good lawyer to draft a request letter for interfiling) if I am in your situation I will file second I-485, and spouse I-485 will write the A# on I-485 and will not care about fees

Given that each person can only have one 485 application in the system,
----------- Where it is written that one can have ONLY on I-485 pending? One CAN have more than one I-485 pending nothing-in law prevent you filing second I-485 (you have to pay the fees for new I-485)
what are our best options?

Some questions:

1. Can we transfer our EB3 485 filed through my wife's company to my EB2 140? If yes, how?
-------------------- Read above
2. If we do transfer, what will happen to our existing EAD and AP; will they still be valid, since we need them for continuing our employment.
------------ Yes
3. Are there any risks involved in the transfer?
----------- May delay the process if the officer is new, I will file new I-485 or stick with EB3
4. Another option is to file a brand new 485 against my EB2, which seems riskier. Again what happens to EAD & AP in this case?
---------------- Go for it, if you apply EAD AP with that I-485 you will get EAD AP and that will be valid EAD AP (if you have EAD AP based on earlier filing then that EAD AP is also valid)
5. If we do nothing when are we likely to get our GC based on the existing EB3 priority date of April 2002? The current date for India seems to be March 2001.
---------- Yes

Read:
PEARSON MEMO
http://www.ilw.com/lawyers/seminars/august2002_citation2c.pdf

 

[fmntguy]

Confirming my understanding

Thanks a lot Ginnu. Just writing back to confirm that I understood what you said correctly.

My best option is file brand new I-485 both for myself and my wife against the new EB2 I-140, withme as primary. Put the old A# here for both myself and my wife.

I should concurrently file for EAD and AP against the new I-485 alltough we do have exisiting EADs that dont expire till Jan 2007 (more that 6 months from now --- so is it possible?). Doing so will still keep the existing EAD valid and allow for my wife to continue her current employment which is dependant on that.

 

[ginnu]

Thanks a lot Ginnu. Just writing back to confirm that I understood what you said correctly.

My best option is file brand new I-485 both for myself and my wife against the new EB2 I-140, withme as primary. Put the old A# here for both myself and my wife.
------correct
I should concurrently file for EAD and AP against the new I-485 alltough we do have exisiting EADs that dont expire till Jan 2007 (more that 6 months from now --- so is it possible?).
------ if you have valid EAD till Jan 2007 no need to file EAD with new I-485
If you or your spouse are using EAD then file EAD based on pending EB3 I-485 or new I-485 in Sep/OCT 2006
Doing so will still keep the existing EAD valid and allow for my wife to continue her current employment which is dependant on that
------ YES, she can use EAD based on her primary I-485 pending or EAD based on new I-485 as spouse
** you and your spouse need to write your A# on I-485 or other forms for EAD or AP
*** On I-485 form they ask if any I-485 is pending, write YES and provide the pending I-485 reciept # on your I-485 and your spouse need to write on her form.
.