EB2-3 Predictions (Rather Calculations)

[Transformer]

Just adding to Idliman's post.

1) I think your wife is already H4 even now. Its dual status H4 + AOS pending.
2) I also think your attorney is wrong that she needs to be in xyz status to file a 485. No Sir. That's plain wrong. Anybody in any legal status can file a 485 which is nothing but a request to adjust applicant's status from whatever legal status s/he has to Permanent Residence status.

I am not an attorney. Get a new attorney and validate what I said and please do post back on forum. Wish you the best my friend.

Q,

One can't be on AOS pending status when applying for 485. Has to be on non immigrant status.

OP,

Based on what you described, I don't see your wife on H4 status right now. She started using her EAD in September 21, and H4 approval came in Oct 21. Does she stopped using her EAD immediately after getting H4? If not she is not on H4.

Going to Mexico is an option. Automatic Visa Revalidation puts her back in H4 and you can apply for 485.

BTW, with recent USCIS guidelines, interfiling is a better option than refiling your 485. I am not sure what extra benefit you are going to get by refiling. For interfiling your wife doesn't have to be in H4 status.

[gansun]

it seems although the approval came in October 2021 - the notice does say Sep 21. So it seems USCIS ensured her H4 status is uninterrupted. I think his lawyer may not have picked that up.

The exact I-9 filed date is 09/20/2021. H4 Approval notice date is 10/07/2021 valid from 09/28/2021 to 09/27/2024

[Transformer]

The exact I-9 filed date is 09/20/2021. H4 Approval notice date is 10/07/2021 valid from 09/28/2021 to 09/27/2024

Did she stopped using GC-EAD as soon as H4 approval is received?

[gansun]

No. She is still using the 485 EAD. My attorney said, H4 extension approval is not valid after using 485 EAD. But he said, I am eligible for interfiling.

[Transformer]

No. She is still using the 485 EAD. My attorney said, H4 extension approval is not valid after using 485 EAD. But he said, I am eligible for interfiling.

Your attorney is 100% correct. Once you use GC-EAD you will lose your H4 status and moved AOS pending status and one can't file a new 485 by staying in AOS pending status. I am not sure what is the confusion here.

[qesehmk]

The exact I-9 filed date is 09/20/2021. H4 Approval notice date is 10/07/2021 valid from 09/28/2021 to 09/27/2024

I don't want to come across too confident. But please understand following things and then make a decision.
1) Status and visa are different things. You can acquire status simply by getting your F1 or H1 or F2 or H2 approved (if you are already within United States). If you are already in one valid status and also apply and get approved for another (e.g. F2 to F1 or H4 to F1 etc) you have to file Change of Status. But bottomline is - when in US - you acquire status the moment a relevant application is approved by USCIS. In this case the H4.
2) Dependents anyway have derived status. So as long as your H1 is valid - she is considered to have her status derived from you. If someone is on H4 then their status automatically terminates when H1 terminates. By same way if H1 is valid, H4 is at least treated somewhat favorably if not simply considered in status ( i must admit I do know how much the legal limits can be stretched).
3) What happens when somebody's two consecutive approval periods have a gap? First check if your wife's notices approval periods have any gap between them. It doesn't matter when the notice was approved or communicated. What matters is the validity period. If the prior validity and current have no gap then she was never out of status. If there is a gap - then she has accrued unlawful presence. But because her status is derived - USCIS may very well not treat it as unlawful presence at all. Besides by virtue of #1 they have already granted her H4 status.

I hope this helps. and I am going to put a full stop on this from my side until you come back with your final status on this topic. Definitely worth speaking to another attorney.

My best two you and all. I think this is critical and will help all - so your status update is greatly appreciated.

[gansun]

She don't have any gap in H4. My only confusion is, can she use AVR or not. I checked with another attorney. Now they both are contradicting. He said, My wife can use AVR to come back to H4 status. But anyway, As per the new USCIS alert, I am going to interfile. Thanks to Q, Transformer, and idliman.

[qesehmk]

But anyway, As per the new USCIS alert, I am going to interfile.

Reminds me of Al Pacino's quote from "Scent of a Woman (1992)". It's not kosher so I am going to mask it !! He says - "When in doubt, duck ".

If I were you I would not spend time money etc going to Mexico. I would simply try filing 485 or whatever. What can go wrong? They will deny it - and you will know the basis of denial and i am sure it will have some remedy. Anyway .. thanks for confirming that at least the lawyers can't seem to agree. I am very confident she is not out of status. Good luck.

[LeoAugust]

Hi Gurus,

Does AC21 reset in case of refile/interfile? Please let know.

Thanks

[qesehmk]

Hi Gurus,

Does AC21 reset in case of refile/interfile? Please let know.

Thanks

Once you have filed 485 and six months passed then you file refile interfile - whatever - as long as the original one 485 is pending - you are protected by AC21

p.s. - please see Vsivarama's post and link below. Apparently I was partially wrong. It seems USCIS considers interfiling as changing the basis or original and resets AC21.

[SG2020]

USCIS/TSC finally accepted the third PP request and approved the I-140 in 3 days. Now that I have the I-140, I am hoping it puts me in a better position to request my congressman's help.

Yes. Both my EB2 and downgrade I-140 are at SRC. PP was rejected twice already. So let's see if things change this time...3rd time's the charm!

[LeoAugust]

Once you have filed 485 and six months passed then you file refile interfile - whatever - as long as the original one 485 is pending - you are protected by AC21

Thanks Q. In case I refile for EB2 then I am free to use EAD/AP (EB3-AOS) for travel and job change.

[Transformer]

Hi Gurus,

Does AC21 reset in case of refile/interfile? Please let know.

Thanks

For refile, which means you are filing a new 485, that new 485 has to be pending for 180 days for AC21 to kick in.

For interfile if doesn?t matter.

[qesehmk]

Q,
One can't be on AOS pending status when applying for 485. Has to be on non immigrant status.

Earlier I responded that I am pretty sure OP's spouse is on H4 - never lapsed.
But assuming one has no status ... it is possible that she may not be eligible for 485 filing. That only a lawyer can tell.

[eb2may2011]

Hi all.

I would really appreciate some some urgent advice!! Lawyer filed I485 which had our scribbled corrections in blue ink!

We had filed I485 in Nov 2020. Lawyer had electronically filled the forms (I485, EAD/AP), and sent them to us for review.While reviewing the forms, we noticed several mistakes ( misspelled middle name, mistake in date of marriage etc) .We corrected the mistakes in blue ink and sent them to the lawyer.Our understanding was that the lawyer will make the corrections electronically and send the forms to USCIS.But today when we finally got copies of the forms submitted, we saw that the lawyer had filed the copies which had our scribbled corrections in blue ink!

What can I do now? As per the USCIS website, the forms are to be filled in black in and within the space provided. We had similar mistakes in our EAD/ AP application, but they were approved without any issues.Can I expect the same for 485? or should I file a fresh application?

[vsivarama]

For refile, which means you are filing a new 485, that new 485 has to be pending for 180 days for AC21 to kick in.

For interfile if doesn?t matter.

I may have to disagree with this one. I was doing some research on this when I ran into the below text on USCIS page. Shared the link below. Looks like AC21 clock is reset for interfiling.

"If an employment-based applicant requests to transfer the adjustment application to a different employment-based category based on a new Form I-140, the applicant may not utilize the portability provisions, if applicable, until 180 days or more after making the transfer request. The applicant?s new job offer must be in the same or similar occupational classification as the job for which the petition was initially filed. In essence, transferring the basis of the adjustment application resets the adjudication clock for purposes of portability eligibility.[13] "

https://www.uscis.gov/policy-manual/...rt-a-chapter-8

[vsivarama]

What can I do now? As per the USCIS website, the forms are to be filled in black in and within the space provided. We had similar mistakes in our EAD/ AP application, but they were approved without any issues.Can I expect the same for 485? or should I file a fresh application?

I would not worry, at least not yet. The good news is that your application was accepted despite it being pretty obvious that it had corrections in blue ink. You may want to get a second opinion of what needs to be done. Your lawyer has already made it clear how he sees it by submitting those applications.

[qesehmk]

Great find vsivarama. I think this must be challenged in the courts. This has grave consequences e.g. if you are on EB3 AOS (without work visa) and trying to interfile to EB2 and AC21 is lost then you are instantly out of status.

Am I missing something?

I may have to disagree with this one. I was doing some research on this when I ran into the below text on USCIS page. Shared the link below. Looks like AC21 clock is reset for interfiling.

"If an employment-based applicant requests to transfer the adjustment application to a different employment-based category based on a new Form I-140, the applicant may not utilize the portability provisions, if applicable, until 180 days or more after making the transfer request. The applicant?s new job offer must be in the same or similar occupational classification as the job for which the petition was initially filed. In essence, transferring the basis of the adjustment application resets the adjudication clock for purposes of portability eligibility.[13] "

https://www.uscis.gov/policy-manual/...rt-a-chapter-8

[gammaray]

Great find vsivarama. I think this must be challenged in the courts. This has grave consequences e.g. if you are on EB3 AOS (without work visa) and trying to interfile to EB2 and AC21 is lost then you are instantly out of status.

Am I missing something?

Yes which is why you need to have a valid underlying non-immigrant status to be able to interfile or of course to file a new I-485. Can't do either if just on AOS pending status.

[AceMan]

Great find vsivarama. I think this must be challenged in the courts. This has grave consequences e.g. if you are on EB3 AOS (without work visa) and trying to interfile to EB2 and AC21 is lost then you are instantly out of status.

Am I missing something?

Q, why should one interfile when he is planning to wait for 6 months or more and activate AC21?

[vsivarama]

Q, why should one interfile when he is planning to wait for 6 months or more and activate AC21?

A lot of things can happen in 6 months. Org reshuffling, Layoffs, changes in personal life. A few people may be wanting to get out but now are stuck longer with the current employer. I get why USCIS has that rule in place but practically I can think of lot of scenarios where people could land into trouble. The scenario being discussed is for folks who have already waited 6 plus months on 485 and can currently avail AC21.

[Transformer]

https://www.uscis.gov/policy-manual/...rt-a-chapter-8

That?s interesting and good find. But with interfiles, there is no guarantee that USCIS accepted or not and you will never know, that is tricky. I think it is better to follow this guideline but lot of attorneys are advising the other way.

[eb2may2011]

I would not worry, at least not yet. The good news is that your application was accepted despite it being pretty obvious that it had corrections in blue ink. You may want to get a second opinion of what needs to be done. Your lawyer has already made it clear how he sees it by submitting those applications.

Thanks for your response. Checking with lawyers now.

Also my application was filed originally at Nebraska.It was transferred to NBC on Nov 9.Now its transferred again to Nebraska from NBC. Is this sort of ping pong with applications common?

[vsivarama]

That?s interesting and good find. But with interfiles, there is no guarantee that USCIS accepted or not and you will never know, that is tricky. I think it is better to follow this guideline but lot of attorneys are advising the other way.

That's why I guess it is worded in a specific way. It says "until 180 days or more after making the transfer request". It does not say anything about the interfiling request being accepted by USCIS as the applicant will never know that. Plus, I believe that's the reason they added 485J so that folks have the received date for their records.

[qesehmk]

Yes which is why you need to have a valid underlying non-immigrant status to be able to interfile or of course to file a new I-485. Can't do either if just on AOS pending status.

Yes. I do think this can and should be challenged in the courts. When a person asks to interfile - s/he is not really withdrawing. So 485 is still in good standing. So why is USCIS is creating novel interpretation?

Q, why should one interfile when he is planning to wait for 6 months or more and activate AC21?

I did not suggest s/he do that. Whoever does interfile while on AOS has a huge problem and that's why lawyer would suggest they must have another valid status (immigrant nonimmigrant doesn't matter imho). Also going back to gansun's case - I am fairly confident his spouse is H4. So in their case interfiling will work.