Salary Question for 485i

[nycindia]

Hi all gurus,
In labor , my salary is shows 60k but I am getting 40k only. Do think it will a problem for 485 approval ? My I140 is approved. Service center VSC.
I applied in 245i.

Thanks in Advance

 

[saf]

You will be called for the interview for sure since you are 245i applicant. During the interview, they will ask you for paystubs, tax returns, employment letter, etc.

For your salary, it seems it is not okay because you need 5% of your labor's salary (ie. $$ on labor * .95 = min of salary). You would need $57K which is okay. 5% is recommended by most lawyers.

Otherwise, you need to find a similar job in the definition of AC21 if your 485 is pending for more than 180 days.

 

[nycindia]

salary problem in 485

Thanks for reply.

But Shall I say that GC is for "future employment" and I was working only 30hr per week that's why my salary is 40K . I am in h4 Visa and visa is still valid till end of 2005.

All 245i applicant must have to face interview ? That is rules ?


Thanks again.

 

[fast_gc_seeker]

Thanks for reply.

But Shall I say that GC is for "future employment" and I was working only 30hr per week that's why my salary is 40K . I am in h4 Visa and visa is still valid till end of 2005.

All 245i applicant must have to face interview ? That is rules ?


Thanks again.

if u r on H4, how can u work?

 

[saf]

I am confused....

1. Are you sponsored by your employer? If so, why are you on your H4 status instead of H1 status? A person on an H4 status is not allowed to work unless and until the person gets a Change of Status from the INS from H4 to H1B status.

2) Are you with your spouse who is primary applicant (H1 visa holder) filed your 485 for you? If your spouses files for himself/herself and you and I assume you are on your EAD, you don't need to worry about your salary because you are dependent.

Do you have a lawyer? If so, please consult your lawyer about H4 visa vs H1 visa and ask your lawyer if you are eligible as a 245i applicant since you worked on H4 visa which doesn't allow person to work.

 

[nycindia]

Thanks both of you,

I was on h4 but I substi. 245i labor so I got EAD and I am working in company. My spouse is on h1b and we extend his h1b status so I got h4 extenstion too. But Still I have valid EAD. For GC I am principle applicant

All 245i applicant must have to face interview ? That is rules ?

Thanks in Advance

 

[saf]

I am still confused..

A. Are you saying that when you were on H4, then you got your job, filed 485 and got your EAD? That's illegal because a person on an H4 status is not supposed to work or file his/her 485. I don't know how the immigration officer allowed you to file your 485 (officer should return your 485 application and checks). Since you are an 245i applicant, I am not sure they will grant you a GC approval. That's tough.. you definitely need to consult your lawyer.

or

B. Are you saying that when your spouse is H1 visa holder and filed his/her 485 case for himself/herself and you, you got your EAD and your H4 extension and then you started working on your EAD, then you filed your 485 case for you and your spouse while you are on your EAD? correct? That would be no problem definitely. If your labor or your 140 is filed before 2001 or 2000, u are eligible as a 245i applicant and you will have no problem getting a gc approval. But one little problem is that your spouse is already filing his/her 485 for himself and you. And you are filing your 485 for you and your spouse. That could confuse immigration officers and delay approving your cases. You should consult your lawyer definitely.

--------------------------------------------------------
Answers:

If you want to be a primary applicant, you should have switched from your H4 to H1 before you file your 485 application for you and your spouse, then if your labor is filed before dec 2001 or 2000, you are eligible to apply as an 245i applicant.

OR

Your spouse should file his/her 485 case for himself/herself and you, but if your spouse's labor is filed before dec 2001 or 2000, you are eligible to apply as a 245i applicant with your spouse (primary applicant.)

Hope this helps.

 

[TheRealCanadian]

That's illegal because a person on an H4 status is not supposed to work or file his/her 485. I don't know how the immigration officer allowed you to file your 485

Since when can an H-4 holder not file an I-485????

If you want to be a primary applicant, you should have switched from your H4 to H1 before you file your 485 application

This is completely wrong. There is no requirement that a primary or derivative applicant be in any status; and 245i and 245k beneficiaries can be out of status when they file the I-485.

Where on earth did you come up with this stuff?

 

[pralay]

if u r on H4, how can u work?

I am not clear about the situation of "nycindia", but it's possible to work.
For example, John Doe working for company A in H1B. His company did not file GC for him. The spouse Jenny Doe on H4 and company B filed LC, I-140, I-485 for her - but she is still not employed (GC is for future employment). So Jenny Doe is the principal applicant on H4 and John Doe is derivative applicant on H1. After filing I-485 both gets EAD and both allowed to work.

 

[saf]

yeah you are right, TheRealCanadian. I have researched today. I read BCIS rule about 245 section. She can qualify as 245i applicant.

But there is a BCIS rule that person on the H4 status cannot work and cannot qualify for permanent residency unless she get COS approval (from H4 to H1). There is an exception for 245i or 245k.

I think you would be okay, nycindia. Sorry about that. I think you will be fine.

During the interview, they will ask for your paystubs, employment letter, tax returns. I don't think officer will ask you why you are a 245i applicant.

Actually I was an 245i applicant (primary applicant) and got my gc approval. I had the interview and interview was smooth. no problem. They didn't ask me why I applied under 245i section. just paystubs, employment letter, and tax returns and EAD cards. Before I got my gc approval, I got married and added my spouse to my pending 485 application. One year after I got my gc approval, my spouse got the GC approval without any interview.

Good luck.

USGC485

 

[TheRealCanadian]

But there is a BCIS rule that person on the H4 status cannot work and cannot qualify for permanent residency unless she get COS approval (from H4 to H1). There is an exception for 245i or 245k.

This too is incorrect. There is absolutely nothing that requires an EB immigrant to have been in H-1 status before they file for permanent residency.

You are correct in stating that an H4 holder cannot work; and if they do for more than 180 days then there are going to be problems with an adjustment (but not for CP). However, an H4 holder who has not violated his or her status can certainly be the primary applicant for permanent residency.

Don't forget that there are a lot of other non-immigrant statuses whose holders file an I-485 every day, like L, O, or TN.

 

[pralay]

But there is a BCIS rule that person on the H4 status cannot work and cannot qualify for permanent residency unless she get COS approval (from H4 to H1).

It has to be something extra-ordinary!!! Where is the rule? Any reference?

 

[saf]

pralay, Remember the general rule: H4 holder cannot work. I am not sure if H4 holder is eligible to apply for I-485 for herself without 245i or 245k. I have questions. Just curious. I am neither a lawyer nor expert. Without using 245i or 245k, how can you work if you are on H4 status? And without 245i or 245k, would you eligible for permanent residency as a primary applicant (only employment-based category) if you are on H4 status?

I understand that the spouse can use her EAD thru her spouse while she is on her H4 status. She can get a job because of her EAD and can apply for permanent residency because of her EAD despite that she is on her H4 status. right? I understand. But suppose 245k or 245i doesn't exist, without EAD, is it possible to get a job while a person is on H4 status and can apply for permanent residency?

 

[tammy2]

pralay, Remember the general rule: H4 holder cannot work. I am not sure if H4 holder is eligible to apply for I-485 for herself without 245i or 245k. I have questions. Just curious. I am neither a lawyer nor expert. Without using 245i or 245k, how can you work if you are on H4 status? And without 245i or 245k, would you eligible for permanent residency as a primary applicant (only employment-based category) if you are on H4 status?

I understand that the spouse can use her EAD thru her spouse while she is on her H4 status. She can get a job because of her EAD and can apply for permanent residency because of her EAD despite that she is on her H4 status. right? I understand. But suppose 245k or 245i doesn't exist, without EAD, is it possible to get a job while a person is on H4 status and can apply for permanent residency?

Green card is for future job. Your current status or whether you are working now does not matter. You can also apply labor , I-140 and take CP route for some one who is not in US. Once the immigrant petetion is filed any one US on any visa can apply for I-485
245(I) is an exception for those who were out of status before 2000. 245(I) is not related to any type visa

 

[pralay]

And without 245i or 245k, would you eligible for permanent residency as a primary applicant (only employment-based category) if you are on H4 status?

Yes, definitely. A H4 can apply for I-485 as primary. See one of earlier posts above (in this thread). GC process is for future employment. It has nothing to do with the current status (H1 or H4) or in fact whether the applicant is currently employed or not. Again, in GC process - LC is for future employment (not current employment), I-140 is for future employment (not current employment) and I-485 is for future employment (not current employment).

But suppose 245k or 245i doesn't exist, without EAD, is it possible to get a job while a person is on H4 status and can apply for permanent residency?

Without EAD, it's not possible to get a job. However, it's possible to apply for and get perm residency - as primary.