Will it be harmful filing I-485 if I-140 has a high probability of denial?

B

blueocean

Registered Users (C)
I filed I-140 in March and received a RFE in May. The reply to the RFE was filed in early August and the result is pending. Now, I'd like to file I-485 before receiving results for I-140 from USCIS. But my lawyer (company contracted) said it would "place me on a greater risk by filing I-485 application prior to the I-140 approval". They said they have seen a few similar cases as mine were denied. I have to admit that the chance of approval for my I-140 is small. But the thing is there is not much time left for me with my current employer as our department will be sold soon. That's why I'm eager to get this I-485 filed as soon as possible so that I can switch employer with the current application.

Is the lawyer right? I have never heard of anything like this before. Hope someone can help me.

Thank you!
 
Well, it may be not some regulation that your lawyer is referring to but common sense - filing I-485 AFTER your I-140 is approved is much safer, as the first big hurdle is out of the way. If your underlying I-140 is denied, your I-485 and all benefits that come with it (EAD, AP) will be denied as well.

Having said that, you can certainly file I-485 now, pay all the fees involved and hope for I-140 approval. It's your call whether you want to take the risk.
 
I agree. However, filing I-485 now starts the clock ticking for 180 days of filing, after which you can change employers, for example. So although you can lose money, you can gain other things. Besides, the most important thing is why do you believe your I-140 will be denied?
 
Thank you two very much for the reply! That is what I'm thinking too. I'd like to take the risk to gain time. And I don't think the denial of I-485 will be damage my future application. Correct?

To answer braniand, the reason I think the chance of denial for my case is high is that I obtained my degree (required in ad for LC) later than filing of LC. Looks like USCIS tended to deny cases like this before.

I'll try to convince my lawyer to file ASAP (will be a difficult task) and cross my fingers and toes for it.

Thanks again!
 
I was in a sort of similar situation and then bit the bullet and filed 485.

I read this somewhere on this portal that any i-485 denial based on I-140 denial is not counted against the 485 petitioner.

A word of advice . Do not used EAD till 140 is approved and 180 days have passed since 485 filing. Maintain H1 status.

blueocean said:
Thank you two very much for the reply! That is what I'm thinking too. I'd like to take the risk to gain time. And I don't think the denial of I-485 will be damage my future application. Correct?

To answer braniand, the reason I think the chance of denial for my case is high is that I obtained my degree (required in ad for LC) later than filing of LC. Looks like USCIS tended to deny cases like this before.

I'll try to convince my lawyer to file ASAP (will be a difficult task) and cross my fingers and toes for it.

Thanks again!
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Thanks for the information. It's good to know somebody has the similar situation as mine. I'm trying to do the same thing here. File 485 and take the risk.

I probably will not apply for EAD and AP at this time. I'm thinking the same as well. It will be risky to work on EAD even before receiving the final GC as it would ruin all legal status. But H1B can be extended after certain situations and it would be legal to switch employer under H1B if 485 was denied.

Thanks again!
 
Blueocean,

Get you H1 extended BEFORE you file 485. Because filing 485 declares your intention to become immigrant. If you do that you CANNOT file H1 which is for non-immigrant workers.

However, please note that my opinions in the matter of immigration are worthless.
 
RunninSloth,

Thank you very much for your VALUABLE advice! Fortunately, I just had my H1B extended for the second term. I now have another 3 years to waste on GC application :) It's wise to be cautious and always try to be on the safe side when dealing with immigration stuff.
 
This is incorrect. H1B is a dual intent visa. Yoy may not be able to file for NEW H1 but you can get H1 extended as many tiems as allowed legally.


RunninSloth said:
Blueocean,

Get you H1 extended BEFORE you file 485. Because filing 485 declares your intention to become immigrant. If you do that you CANNOT file H1 which is for non-immigrant workers.

However, please note that my opinions in the matter of immigration are worthless.
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