What to do? NIW-140 and 485 Denied

A

alkhemist_03

Registered Users (C)
Friends,

I am desperate right now. As I posted elsewhere ( http://www.immigrationportal.com/showthread.php?t=278543 ), my NIW application was denied along with the 485 on May 1, 2008. I have not received the denial letter yet. Just have the email from CRIS

I have an EB1-OR application pending which was filed on March 28, 2008.

Since I had no underlying status (not on H or other work visa), I am out of status right now. Terrible place to be!!

My lawyer says to file an MTR (motion to reconsider) on the denied I-485 and "link" it to the pending EB1-OR. The other option is to file a fresh I-485 for the EB1-OR with a section 245(k) requesting pardon for being out of status for a few days. I have following questions in this regard.

1- Since I am out of status, when do they start the deportation process, if at all. I have read that I have 30 days to appeal the denied application before they start deportation proceedings. Just want to rule out if I am in immediate danger of deportation or not?

2- Should I file an MTR on I-485 or file a fresh I-485. As I understand it, MTRs are notoriously unpredictable. If my MTR is denied, I would have been out of status for a longer time and perhaps vulnerable to deportation proceedings. Can anybody comment on this?

3- My employer is willing to sponsor an LC based EB2 application. However, it could be up to 6 months until a I-140 is filed depending on how long the labor process takes. This assumes that my 485 either gets re-opened or a fresh one is filed for the EB1-OR application to give me status in the interim.

However, in case my EB1-OR is denied later and the 485 along with it, I will be in the exact same situation as I am right now.

Given this, is it prudent to even consider the LC based EB2 option?

Sorry to be so long winded.

Thanks
 
If I remember correctly you work for a University, right? In that case you can file for H1 without quota. Using premium processing you should be able to get your petition approved in 2 weeks, including LCA. Leave the US, get a stamp, and re-enter in H status and then try to fix the NIW/OR mess. Its always safer to maintain your non-immigrant status.

If you already had your 6 years H1, go for O1. If you qualify for NIW, you should also qualify for O1. It has no limit (you can extend it indefinitely every 3 years), and you can even use the same letters of rec you already have for the NIW package.
 
nscagony

I work for a startup company. I am considering the O-1 option. Is getting the visa stamped from outside the country a requirement?
 
Absolutely , I think filling a O-1 would be best option to stay legally. You do not need to stamp the visa to work. You can just continue
 
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