EB2-3 Predictions (Rather Calculations)

[idliman]

I concurrently filed I-140 and I-1485 in January 2022 (I-140 premium processing). However, I received an RFE for experience letters for I-140. I worked for a bank in NYC for 6 years as a VP in a supervisory role. Unfortunately, the bank does not provide detailed letters of experience. I have a letter from HR which gives start date, end date and designation. However, it does not provide job duties. My manager at the bank also has refused to provide a letter of experience. As a result, I had taken a letter of experience from a peer. However, the RFE indicates that the letter from peer is inadmissible.

Request everyone's help as to what the best course of action will be. Are there other alternatives that are available ? This is an urgent matter and can make or break my green card journey. Any help will be greatly appreciated.

Do you have your job posting when you applied which should give the job responsibilities in details?
You letter of job offer is also likely to include similar details

In this case, you have to beef up your supplemental evidences and hope for the best. What is your attorney's advice?

1) Prove that you worked in the Bank for 5 years (by providing paystubs or W-2's)
2) Show the PERM job description from 9089.
3) Usually attorneys include descriptions in I-140 application. You can use that too.
4) Instead of getting experience letters from one co-worker, get it from 3 or more. Tell them that USCIS may call anytime to verify.

These are the things that I can think off now.

[optimista]

Gurus, Folks,

After the endless wait, finally I received my EAD/AP card. My GC/I-485 application is still pending. As luck would have it, my client has offered me a full time job. They want me to start ASAP sometime next week. My vendor is fine with me jumping to the client side. To give some context, my PD was in August 2010, category EB2, application was submitted in October 2020 (well past 180 days). Although I have accepted clients offer, there are many doubts.

1. Is it safe to use AC21 and move to new employer? What additional paperwork I have to have my new employer do to ensure the transition is smooth?
2. New employer is insisting that I should apply to H1-B as well since it is safe to do so. I am just fed up of this H1-B stamping process and difficulty in travelling. Have you seen people surviving just on EAD/AP? What's the benefit of having an H1-B still at this stage?
3. My wife's EAD/AP is still not processed. She is doing the usual SR, tier-2 cycle. But in general how long it takes for a spouse to get EAD card after the main applicant gets it?

Getting EAD/AP feels really great. Now I truly understand what the term 'get out of jail free card' exactly means :-) LoL.

Thanks to all the Gurus and folks who provided invaluable advice so far to me, it really helped me survive this excruciating process.

Take care you all.

[Immigo]

In this case, you have to beef up your supplemental evidences and hope for the best. What is your attorney's advice?

1) Prove that you worked in the Bank for 5 years (by providing paystubs or W-2's)
2) Show the PERM job description from 9089.
3) Usually attorneys include descriptions in I-140 application. You can use that too.
4) Instead of getting experience letters from one co-worker, get it from 3 or more. Tell them that USCIS may call anytime to verify.

These are the things that I can think off now.

Thank you idliman - some really useful suggestions. My inline comments are given below:
1) Prove that you worked in the Bank for 5 years (by providing paystubs or W-2's)
=> This is not needed as the letter from employer confirms start and end date (but not job duties)
2) Show the PERM job description from 9089.
=> Great suggestion! Unfortunately, Job description in 9089 does not cover my managerial responsibilities, which may become an issue as PERM requires 2 years of management experience I was able to find a letter that the employer wrote to USCIS in support of my H1B extension (ongoing job). Again, this does not describe my managerial responsibilities, focuses more on domain expertise and technical skills. However, this may prove to be helpful - will include it in RFE reply.
3) Usually attorneys include descriptions in I-140 application. You can use that too.
=> Same as 2, I-140 has the attached 9089.
4) Instead of getting experience letters from one co-worker, get it from 3 or more. Tell them that USCIS may call anytime to verify.
=> I am able to get a notarized letter from the person who was my direct supervisor for 1 year. Going to add this to the RFE reply as well.

[bookworm]

1. Is it safe to use AC21 and move to new employer? What additional paperwork I have to have my new employer do to ensure the transition is smooth?

Similar situation as yours in 2012. Only 485J would need to be submitted assuming old Job and New Job are similar.

2. New employer is insisting that I should apply to H1-B as well since it is safe to do so. I am just fed up of this H1-B stamping process and difficulty in travelling. Have you seen people surviving just on EAD/AP? What's the benefit of having an H1-B still at this stage?

If your employer is paying for it then it provides you the safety net of continued lawful status in the remote possibility that your GC gets rejected. You can travel on AP and give up your H1B status if you feel like it when you come to that bridge.

3. My wife's EAD/AP is still not processed. She is doing the usual SR, tier-2 cycle. But in general how long it takes for a spouse to get EAD card after the main applicant gets it?

Shouldnt be the case. Get help from your senator/representative to get traction on her case.

I have been on EAD for 9 years, EAD reduces stress for job change but adds 4 hours each time you come back to US (secondary inspection). By the 4th time I was answering questions preemptively in the secondary inspection!

Good luck and god speed in getting your GC.

[amey111]

I am currently working on H1-B visa, and also have approved EAD/AP(as the derivative applicant). I plan to travel to India later this week, and re-enter US on my AP (as H1 is not stamped). If immigration officer asks about H1 and why you entering on AP, any recommendations on what should the response be?

Thank you.

[gammaray]

I am currently working on H1-B visa, and also have approved EAD/AP(as the derivative applicant). I plan to travel to India later this week, and re-enter US on my AP (as H1 is not stamped). If immigration officer asks about H1 and why you entering on AP, any recommendations on what should the response be?

Thank you.

Exactly what 's true-- the H1 isn't stamped so your using AP for travel and continuing working with the same employer as you were on H1b. I don't believe anything will be questioned as such.

[LeoAugust]

Hi Gurus,

With Mar-VB what is your opinion about EB2 FAD how far it will go? Do we see a chance of touching Jan-01-2014?

Appreciate your thoughts.

Thanks

[Transformer]

Hi Gurus,

With Mar-VB what is your opinion about EB2 FAD how far it will go? Do we see a chance of touching Jan-01-2014?

Appreciate your thoughts.

Thanks

Highly unlikely. You can't expect FAD to go beyond FD by end of the FY.

[LeoAugust]

Highly unlikely. You can't expect FAD to go beyond FD by end of the FY.

When do you think it will likely touch Jan-01-2014?

[rave79]

Hi Experts - Need some guidance in my scenario

Company A -- EB2 I-140 approved -- PD 06/2013

Current Company B -- EB2-EB3 downgrade filed Nov'2020 BM done - No EAD/AP - spouse got EAD/AP

EB3 I-140 approved with correct PD 06/2013

EB2 I-140 approved with INCORRECT PD 10/2019 (probably lawyer's mistake which I didn't realize due to the gungho of EB2-EB3 downgrade last year)


1. How painful/difficult to Interfile especially since USCIS is pushing to Interfile/Upgrade to EB2 since my current I-140 does not capture the correct PD 06/2013?

2. Can I file fresh I485 with Supplement J from Company C (totally new) with approved EB-2 I-140 from Company A (since this has correct PD 06/2013).

Please weigh in your thoughts/recommendations?

Thanks

[AnandK]

Dear Gurus,
Can you please suggest if I need to interfile in Eb2 based on the recent notification of USCIS.
Our details are as below
I have applied for I-765(LIN2190177XXX) along with I-485 (LIN2190177XXX ) and I-131(LIN2190177XXX) on 10-30-2020, and gave fingerprints on 05/14/2021, and till now there is no update on any of my cases. I have even raised a service request SR13472107XXXNSC on 12/13/2021, and there is no update on that.
Also, initially when my application was sent on 10-30-2020, we also sent applications my spouse and daughter. However, the applications of my wife and daughter were being processed at the National Benefits Center, and my application was being processed at the Nebraska Service Center. So, for some reason our applications were being processed at different locations.
On 02/12/2021 USCIS rejected the application of my spouse, stating some papers were missing, and subsequently our attorney's office resubmitted her application, and that new application is being processed at MSC center. My spouse?s receipt numbers are as below
I-485 (MSC2191144XXX) - Pending at MSC
I-131 (MSC2191144XXX) ? Approved on 11/10/2021
I-765 (MSC2191144XXX) ? Approved on 11/10/2021
My daughter also gave her fingerprints along with me on 05/14/2021.
My daughter's receipt numbers are as below
1-485 (MSC2190788XXX) ? Pending
I-765 (MSC2190788XXX) ? Approved on 08/06/2021
I-131 ( MSC2190788XXX) ? Approved on 08/06/2021
My daughters I-485(MSC2190788XXX) application was transferred to LIN office on 07/14/2021
On 08/09/2021 I sent I-693 (Report of Medical Examination and Vaccination Record) forms signed by the Civil Surgeon to the pending form I-485 for my daughter and I, to LIN office. We sent the medicals without any RFE from USCIS
On 08-09-2021 my spouse gave fingerprints
On 11-10-2021 my spouse's I-765 was approved
On 01-25-2022 my daughters I-485 was again transferred to MSC center.
Can you please suggest if I should wait for my case to be processed in EB3 or should interfile in EB2with a hope that they will look at my file, and also if that would help in getting all of our applications in one service center.
Thanks in advance,
Anand
PD : 06-22-2011 (EB2)
RD : 10-30-2020
ND : 02-06-2021
Biometrics : 05-14-2021
I-765 ? Not Approved
I-485 ? Not Approved

[vsivarama]

Dear Gurus,
Can you please suggest if I need to interfile in Eb2 based on the recent notification of USCIS.
Our details are as below
Anand
PD : 06-22-2011 (EB2)
RD : 10-30-2020
ND : 02-06-2021
Biometrics : 05-14-2021
I-765 ? Not Approved
I-485 ? Not Approved

Interfiling is a personal decision that one has to make. Will your case be processed any quicker if you interfile is anybody's guess. No one knows the answer at least not so early into the interfile process. We try not to speculate in this forum (at least not without data). Good news is you are current in both and will likely will remain current till Sept 2022. One major factor to consider is your daughter. I am assuming her age was locked in EB3. If she is over 21 now then just forget about interfiling as her age is not locked in EB2. If she is close to 21 (like a few months short) it's still a risky move as we do not know when USCIS will accept your interfile request and if they do after she turns 21 she can potentially be kicked of your application based on CSPA calculations for EB2 i140. If she is well below the age of 21 then of course you can explore the option to interfile. But as of now, I have not heard of any quick turnarounds and success stories of an interfile. So do you want to go through all this when your date is already current is the question you need to answer yourself.

[vsivarama]

1. How painful/difficult to Interfile especially since USCIS is pushing to Interfile/Upgrade to EB2 since my current I-140 does not capture the correct PD 06/2013?

You have to work with your attorney on that. My hope would be that it's not that painful as your downgrade petition had the right PD. If it were that difficult your downgrade petition would have carried your EB2 PD and your 485 would have been rejected.

2. Can I file fresh I485 with Supplement J from Company C (totally new) with approved EB-2 I-140 from Company A (since this has correct PD 06/2013).

This is straight up impossible unless you go through perm and i140 again with company C

[rave79]

You have to work with your attorney on that. My hope would be that it's not that painful as your downgrade petition had the right PD. If it were that difficult your downgrade petition would have carried your EB2 PD and your 485 would have been rejected.



This is straight up impossible unless you go through perm and i140 again with company C

Thank you @vsivarama , Will this block me from Interfiling (rather upgrade/move back to EB2 that USCIS is currentlyasking everyone https://www.uscis.gov/newsroom/alert...sed-categories ).

Does the I-140 with incorrect PD need an amendment to capture correct PD or does it need a fresh filing?

I feel like I may lose out staying back in the EB3 for the next 6-12 months :-( because my PD will be current in the next visa bulletin Apr'22

[AnandK]

Interfiling is a personal decision that one has to make. Will your case be processed any quicker if you interfile is anybody's guess. No one knows the answer at least not so early into the interfile process. We try not to speculate in this forum (at least not without data). Good news is you are current in both and will likely will remain current till Sept 2022. One major factor to consider is your daughter. I am assuming her age was locked in EB3. If she is over 21 now then just forget about interfiling as her age is not locked in EB2. If she is close to 21 (like a few months short) it's still a risky move as we do not know when USCIS will accept your interfile request and if they do after she turns 21 she can potentially be kicked of your application based on CSPA calculations for EB2 i140. If she is well below the age of 21 then of course you can explore the option to interfile. But as of now, I have not heard of any quick turnarounds and success stories of an interfile. So do you want to go through all this when your date is already current is the question you need to answer yourself.

Thank you Sivarama, I too am thinking to wait for some more time with a hope that it gets approved in EB3.

[vsivarama]

Does the I-140 with incorrect PD need an amendment to capture correct PD or does it need a fresh filing?

This is a clerical error. I do not believe you need to file a new or amend your i140. You lawyer can explain and point out the clerical error in the interfile letter and USCIS should be able to rectify it. You have to work with your lawyer on that. You may want to check out the link below.

https://www.immigration.com/faq/eb2-...-i-140-another

[rave79]

This is a clerical error. I do not believe you need to file a new or amend your i140. You lawyer can explain and point out the clerical error in the interfile letter and USCIS should be able to rectify it. You have to work with your lawyer on that. You may want to check out the link below.

https://www.immigration.com/faq/eb2-...-i-140-another

Thanks for your responses @vsivarama, Appreciate it.

[AnandK]

Interfiling is a personal decision that one has to make. Will your case be processed any quicker if you interfile is anybody's guess. No one knows the answer at least not so early into the interfile process. We try not to speculate in this forum (at least not without data). Good news is you are current in both and will likely will remain current till Sept 2022. One major factor to consider is your daughter. I am assuming her age was locked in EB3. If she is over 21 now then just forget about interfiling as her age is not locked in EB2. If she is close to 21 (like a few months short) it's still a risky move as we do not know when USCIS will accept your interfile request and if they do after she turns 21 she can potentially be kicked of your application based on CSPA calculations for EB2 i140. If she is well below the age of 21 then of course you can explore the option to interfile. But as of now, I have not heard of any quick turnarounds and success stories of an interfile. So do you want to go through all this when your date is already current is the question you need to answer yourself.

Also, wanted to inform that age of my daughter is 16.

[monsieur]

Anand
PD : 06-22-2011 (EB2)
RD : 10-30-2020
ND : 02-06-2021
Biometrics : 05-14-2021
I-765 ? Not Approved
I-485 ? Not Approved

Alot has happened since you filed your case back in 10/2020 so it means USCIS is actively working on your case. Its unfortunate your case hasn't reached desired outcome i.e approval. Your dates are in 2011 and kid age is in no danger of aging out.

With that said as others have said Interfiling is your decision. If I am in your place, before interfiling for EB2, I will involve my Senator / Reps here. Thats the most straight fwd imho and doesn't cost a penny. If still you don't get response from USCIS then you can start thinking abt EB2 filing.

[AnandK]

Alot has happened since you filed your case back in 10/2020 so it means USCIS is actively working on your case. Its unfortunate your case hasn't reached desired outcome i.e approval. Your dates are in 2011 and kid age is in no danger of aging out.

With that said as others have said Interfiling is your decision. If I am in your place, before interfiling for EB2, I will involve my Senator / Reps here. Thats the most straight fwd imho and doesn't cost a penny. If still you don't get response from USCIS then you can start thinking abt EB2 filing.

Hi Monsieur,

Thanks for the response. You are right that USCIS seems to be actively working on the cases of my spouse and child. However, it looks like they are yet to start working on my case, and that is what is causing anxiety for me.
I have already contacted the office of our congressman last week and waiting for the response. They said it normally takes 30 days for the response from USCIS, so I will wait and watch for the time being.

Thanks
Anandh

[monsieur]

Rule of thumb, primary and dependent are approved in short amount of time. Optimistic in me thinks, your file is complete. USCIS noticed/missed things on your dependent files and reached out to you. When all 3 files are aligned, they will approve it in short window of time.

Wait for congressman response and see where it takes you. I have observed, many folks get canned response - "we are working on it" but their case gets approved within 1 month post congressman/senator enquiry.

All the best!!

[AnandK]

Rule of thumb, primary and dependent are approved in short amount of time. Optimistic in me thinks, your file is complete. USCIS noticed/missed things on your dependent files and reached out to you. When all 3 files are aligned, they will approve it in short window of time.

Wait for congressman response and see where it takes you. I have observed, many folks get canned response - "we are working on it" but their case gets approved within 1 month post congressman/senator enquiry.

All the best!!

Thank you, hope it gets approved soon.

[montyp80]

The only way you can interfile with your new employer would be to start the process again like labor, i140 etc, in EB2. There is no risk in transferring to a new employer if AC21 180 day rule is met and your EB3 i140 is approved (which seems to be the case for you, based on your inputs). But remember it's your old employer who holds your approved i-140s for EB2 & EB3. Your new employer can only adjust and port your date in other words only will be able to maintain the status quo. They will be unable to interfile your request in EB2 as they do not have the underlying basis (EB2 i140 in this case). You can however interfile with your old employer, in case they are willing to do so as GC is for future employment.

So USCIS is at it's mysterious best again. Here is the case from trackitt

PD: Dec 2012
EB2-EB3 downgrade
Changed employer on EAD in Sept 2021
During the interview handed off new 485j with old EB2I140
GC got approved in a month.

https://www.trackitt.com/usa-discuss...-and-dependent

Apart from that, hear a few more cases (not current in EB3, current in EB2) where they were approved even without an interfile request!

Looks like USCIS might actually bend their own rules to issue a huge amount of visas in EB2.

[rotikapdaaurgc]

Guys, I received a standard RFE (medicals, job offer letter) for my I-485 on Dec 6 2021. My PD is April 2010. My attorney filed RFE response which was received at USCIS on Feb 9, 2022.

Any guesses how much time USCIS takes to make a decision? My case is with TSC.

Cheers

[Immigo]

Thank you idliman - some really useful suggestions. My inline comments are given below:
1) Prove that you worked in the Bank for 5 years (by providing paystubs or W-2's)
=> This is not needed as the letter from employer confirms start and end date (but not job duties)
2) Show the PERM job description from 9089.
=> Great suggestion! Unfortunately, Job description in 9089 does not cover my managerial responsibilities, which may become an issue as PERM requires 2 years of management experience I was able to find a letter that the employer wrote to USCIS in support of my H1B extension (ongoing job). Again, this does not describe my managerial responsibilities, focuses more on domain expertise and technical skills. However, this may prove to be helpful - will include it in RFE reply.
3) Usually attorneys include descriptions in I-140 application. You can use that too.
=> Same as 2, I-140 has the attached 9089.
4) Instead of getting experience letters from one co-worker, get it from 3 or more. Tell them that USCIS may call anytime to verify.
=> I am able to get a notarized letter from the person who was my direct supervisor for 1 year. Going to add this to the RFE reply as well.

Following up: My I-140 was approved today. The following strategy worked:
1) Shared emails from HR and immigration team from my former employer to confirm that they cannot give detailed job duties in the employment letter.
2) Got notarized letters (not on letter head) from 2 of my former supervisors confirming my job duties.

My understanding is that letters from managers are not accepted unless you can prove that the employer does not provide a letter with detailed job duties (number 1 above). This is an excellent source for reference: https://www.seyfarth.com/dir_docs/pu...ionLetters.pdf

Useful tip: To get the letters notarized, I sent mobile notary to my former supervisors. That way, they just had to show an ID and sign instead of finding to a notary themselves.

Overall, it pays to be more careful at PERM stage itself. Qualifying experience is mentioned in 9089. I was not aware of this. Make sure to discuss with your lawyers that the letters for qualifying experience are strong. In my case, I had additional experience letters which I was unable to use to respond to RFE as the lawyer did not include the experience in 9089.