Potential FB path for secondary applicants to reduce congestion and speed up EB

[qesehmk]

Other than the 'ayaram/gayaram' issue/dilemma, is it true that a person cannot have two parallel applications going on at the same time? I asked this from our firm's attorney (Fragomen) and got the following response...will appreciate any thoughts on whether this is correct:

My questions: Since my EB2 FAD is also current, I?d like to confirm if we can interfile I-485 to get in that queue as well. If we do, will the application go to TSC or some other location? Also, with the interfile, could we submit the medicals at the same time thus make that application documentarily complete?

Fragomen Response: You cannot have two AOS cases pending based on same employment opportunity. As such, you?d need to decide if you?d like your case to be processed under EB-2 or EB-3 category. Given that both are current, it should not make a difference and better to proceed with the case already pending. If the dates were to change for EB-3 category, we can explore switching back to Eb-2 so that the case is not put on hold.

My view is different from Fragomen. If you do have two I-140s (one for EB3 and one for EB2) then you can and should absolutely feel free to file two 485s if you choose to. USCIS must accept both applications because they are NOT the same application. An EB2 job is not same or EB3 job and vice versa.

Beagle is correct that one 485 will only be based on one 140. But if you do have two 140s then I don't see why you can't file two 485. I have to disagree whoever says it is not possible.

Finally ACE and I have a philosophical :) disagreement. He thinks changing lanes is immoral or something like that. My view is people have every right to further their interest in any legal way possible. If you are so inclined to help others - I STRONGLY encourage all to file their spouses and children under FB category. There is virtually no wait there. This will truly speed up everybody in EB2-I without anybody's family getting hurt at all.

[ImmiGiveMe]

If you are so inclined to help others - I STRONGLY encourage all to file their spouses and children under FB category. There is virtually no wait there. This will truly speed up everybody in EB2-I without anybody's family getting hurt at all.

It is a great point Q.. I never thought of this scenario...

I think all the EB1's should do this.. this will give more spillover. And again this all comes to USICS processing speed. If they Adjudicate an EB1 in 3 month's then they can file for spouse and children in F2A (which is also current) and they can get GC in 3 months ;)
..

I know this will not happen (as I myself will not take chances against USICS processing times)..

[qesehmk]

I know this will not happen (as I myself will not take chances against USICS processing times)..

That's the classic prisoners' dilemma in Game Theory! Isn't it?

[HappyUSA]

That's the classic prisoners' dilemma in Game Theory! Isn't it?

I thought about it long back but there is a technical problem ,Dependents will be out of status once you get GC , May be we should check with attorneys if it is possible to apply under FB on pending EB485 primary and once EB primary approved dependents can be adjudicated under FB .

This is my issue with advocacy groups they don't even try these kind of creative ideas to solve GC backlog .

[qesehmk]

I thought about it long back but there is a technical problem ,Dependents will be out of status once you get GC , May be we should check with attorneys if it is possible to apply under FB on pending EB485 primary and once EB primary approved dependents can be adjudicated under FB .

This is my issue with advocacy groups they don't even try these kind of creative ideas to solve GC backlog .

Thanks. Great comment. Yes indeed advocacy should have identified it long time back. Just like they learnt country caps from this blog - they will probably come around this solution independently someday ;)

Regardless - the problem is not in technical status issue but the prisoners' dilemma - which can only be solved through advocacy (either on H1 people's side or on the legislative administrative side by asking USCIS to use FB visas even if application was under EB!!)

The technical status imho is not a big deal at all. e.g. GC is just a visa!! The primary applicant can still continue to work on H1 and the dependents remain in status. If all desis decided to do this - of course the family dates too will retrogress but it most certainly will reduce the burden.

I suggest somebody take lead raise money and we hire a group of expert attorneys to see if this might be feasible.

[srisri]

It is a great point Q.. I never thought of this scenario...

I think all the EB1's should do this.. this will give more spillover. And again this all comes to USICS processing speed. If they Adjudicate an EB1 in 3 month's then they can file for spouse and children in F2A (which is also current) and they can get GC in 3 months ;)
..

I know this will not happen (as I myself will not take chances against USICS processing times)..
For the spouse and dependent of a LPR, not sure if F2A is applied or F2B. Please check before opting for that route.

[qesehmk]

For the spouse and dependent of a LPR, not sure if F2A is applied or F2B. Please check before opting for that route.

It's both but F2A will be applicable to MOST if not all desis.

For people whose children are aging out - they still have F2B as fall back.

Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents: 114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, plus any unused first preference numbers:
A. (F2A) Spouses and Children of Permanent Residents: 77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;
B. (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents: 23% of the overall second preference limitation.

[srimurthy]

It's both but F2A will be applicable to MOST if not all desis.

For people whose children are aging out - they still have F2B as fall back.

Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents: 114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, plus any unused first preference numbers:
A. (F2A) Spouses and Children of Permanent Residents: 77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;
B. (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents: 23% of the overall second preference limitation.

Great idea Q, but can you throw some light on why F2A while the Final Action Dates are Current, the Filing dates are in Jun'21?
Also what HappyUSA raised a valid point and can we do the F2A filing while everyone is here in US or do they have to do a counselor processing?

[qesehmk]

Great idea Q, but can you throw some light on why F2A while the Final Action Dates are Current, the Filing dates are in Jun'21?
Also what HappyUSA raised a valid point and can we do the F2A filing while everyone is here in US or do they have to do a counselor processing?

That's funny actually! I noticed only after you mentioned it. I don't really know nor can I guess. Makes no sense.

You can do F2A right from USA. No need to go to India. Do it before you switch to GC with your employer. That way your dependents are still in status when GC was filed.

Not a lawyer as you know. That's why it is important to get this vetted from lawyers. But think about it - it will immediately move dates by 2-3 years in EB.

[monsieur]

That's funny actually! I noticed only after you mentioned it. I don't really know nor can I guess. Makes no sense.

You can do F2A right from USA. No need to go to India. Do it before you switch to GC with your employer. That way your dependents are still in status when GC was filed.

Not a lawyer as you know. That's why it is important to get this vetted from lawyers. But think about it - it will immediately move dates by 2-3 years in EB.

Isn't GC supersedes all visa? I mean moment its approved your are a LPR reason via H1 extension gets denied if its in flight and GC gets approved.

Its not like an EAD where you inform your employer that you will prefer to use EAD instead of H1.

[qesehmk]

Isn't GC supersedes all visa? I mean moment its approved your are a LPR reason via H1 extension gets denied if its in flight and GC gets approved.

Its not like an EAD where you inform your employer that you will prefer to use EAD instead of H1.
May be it does. But that fact that YOU asked to "adjust status" you do become an LPR !! Now status is a fuzzy concept and that is where a good lawyer is useful to tell us how to file depends under FB while ensuring they are not out of status.

[gammaray]

Isn't GC supersedes all visa? I mean moment its approved your are a LPR reason via H1 extension gets denied if its in flight and GC gets approved.

Its not like an EAD where you inform your employer that you will prefer to use EAD instead of H1.

This is accurate, once the I-485 is approved the status automatically changes to a permanent resident. You can't hold a non-immigrant status (like a h1b) concurrently. Just doesn't work that way. The dependents will lose their status if they are not on the I-485 as well.
If there was any loop hole, trust me, Indians would have found it already.

[qesehmk]

Friends - I have nothing to gain or lose by you getting your GC sooner or later. My advice on this forum is strictly in your interest - not mine. I am very confident about things that I said. It will totally worthwhile if you guys act in your self interest. Over and out on this topic.

[monsieur]

Hey Q, nobody is saying why you are misleading. It was a nice thought and may work for folks who can stay out of US to get GC for their dependent via FB path. But with folks downgrading/upgrading, both spouses filing for GC, leaving country for 1 or 2 yrs to file in EB1 - I don't think folks are that alturistic or have trust in USCIS that they will file alone in EB and get GC for dependent via FB route and leave EB GC number for their fellow immigrant.

In fact if this route is available, i bet it will be blocked via Memo or such. While I agree with you general folks are welcoming for hardworking immigrant but deep down they would like to restrict it which shows up in USCIS working.

[qesehmk]

Hey Q, nobody is saying why you are misleading. It was a nice thought and may work for folks who can stay out of US to get GC for their dependent via FB path. But with folks downgrading/upgrading, both spouses filing for GC, leaving country for 1 or 2 yrs to file in EB1 - I don't think folks are that alturistic or have trust in USCIS that they will file alone in EB and get GC for dependent via FB route and leave EB GC number for their fellow immigrant.

In fact if this route is available, i bet it will be blocked via Memo or such. While I agree with you general folks are welcoming for hardworking immigrant but deep down they would like to restrict it which shows up in USCIS working.

I didn't mean to say anybody thought i was misleading. I am just reiterating that this is a good viable path. If not viable now - with advocacy it could easily be a viable path that won't even need legislation imho. Could just be an administrative fix.

People who are affected should pursue it if they think this is viable.

[monsieur]

This will be akin to not counting dependent in EB category advocacy. Big R party will not agree as its increasing immigration numbers and Right wing media will be running headlines of "million(s) new immigrant coming to US by doing 1 this trick" headlines for years to come.

7% rule has much much better chance than not counting dependent within EB category. Later can be part of CIR if/when that happens.

[qesehmk]

7% rule has much much better chance than not counting dependent within EB category. Later can be part of CIR if/when that happens.

This is no either or discussion. Both can be pursued.

[abcx13]

I was thinking about this idea too, but even if you could do it, I'm not sure it would really help as the spouse GC usage in FB is still subject to country cap. Remember, country caps apply on FB+EB usage. So if spouse adjusts in FB (whether later or concurrently with primary - accommodating the latter would require a change in USCIS processes), that just means one less EB visa available to India.