EB2-3 Predictions (Rather Calculations)

[qesehmk]

According to what I am reading under ?chapter 8: Transfer of underlying basis?, the very first eligibility requirement states, ?1. Continuing Eligibility to Adjust Status?. And to adjust status one must be on a non-immigrant status. And hence I believe, one is not eligible to interfile after they have used EAD for primary employment (H1 is terminated). However, USCIS is using their discretion and pretty much ?allowing? everyone with previously approved EB2I140 (with same or previous employer) to interfile.

EAD is not a status but when one starts using EAD then you lose your H1 status and then your only status is AOS pending which technically is not even a status. It is just a limbo state that is recognized by AC21 law signed during clinton administration.

If a person is already in such a limbo state and waiting to be adjusted to immigrant status by virtue of AC21 then for the life of me I don't understand why changing basis is any problem at all. USCIS is very creative when it comes to stopping Indian/brown immigration. They come up with all sorts of crap and that's what this is. Their rules have no basis in law but then an immigrant who already is in a weak position can't go about challenging them.

Government agencies create their own rules and regulations and USCIS does too. But imho this whole thing about basis transfer is relatively new and they just came up with some explanation to control such transfers. That's how I see it!

[montyp80]

EAD is not a status but when one starts using EAD then you lose your H1 status and then your only status is AOS pending which technically is not even a status. It is just a limbo state that is recognized by AC21 law signed during clinton administration.

If a person is already in such a limbo state and waiting to be adjusted to immigrant status by virtue of AC21 then for the life of me I don't understand why changing basis is any problem at all. USCIS is very creative when it comes to stopping Indian/brown immigration. They come up with all sorts of crap and that's what this is. Their rules have no basis in law but then an immigrant who already is in a weak position can't go about challenging them.

Government agencies create their own rules and regulations and USCIS does too. But imho this whole thing about basis transfer is relatively new and they just came up with some explanation to control such transfers. That's how I see it!

I agree. However, under the new director, I am starting to see current USCIS in a completely different light. They are not following any strict guidelines or at least I am yet to see any case where interfile was rejected citing what is mentioned under Chapter 8. To me, it seems like USCIS is going to accept the interfile requests for everyone with previously approved EB2I140, irrespective of their current status.

I am slowly starting to think that the current director might just be the best thing that ever happened to backlogged community. Hope springs eternal!

[qesehmk]

I agree. However, under the new director, I am starting to see current USCIS in a completely different light. They are not following any strict guidelines or at least I am yet to see any case where interfile was rejected citing what is mentioned under Chapter 8. To me, it seems like USCIS is going to accept the interfile requests for everyone with previously approved EB2I140, irrespective of their current status.

I am slowly starting to think that the current director might just be the best thing that ever happened to backlogged community. Hope springs eternal!

Yes I too think so!

[Sebiswaiting]

Hello folks,
I have a question..not entirely related to prediction but I can link the question to prediction

Back ground - both I and wife changed jobs in recent past and GC process will start only after few months.
My wife's priority date is mid Dec 2014.
My PD is June 2015. Both EB2I

By the time hiring process starts, wage determination, perm etc is filed and approved , it will be another 18 months at least.
By then, her H1B would need renewal. Considering PD is in Dec 2014, I am considering that it will be current from Oct this year.

Second back ground -
My PD is in June 2015, and by the time process starts and ready for 485, it will be another 2 year considering very stiff and slow legal dept due to the nature of my employers domain.

Q - Do you see my PD becoming current in coming fiscal?
Original petitioner is ready to hire me as they are seeing growth but they won't be waiting forever unless I join them in a reasonable time.

Question - in case the legal team/employee considers her/my new job different then original EB file, then will we be still getting H1b extension based on earlier i140? Or it will add complexity as current h1b was based on previous employers i140?
And once the PD gets current, will we be getting H1B extension only for 1 year whether or not same PD is applicable?

[montyp80]

Hello folks,
I have a question..not entirely related to prediction but I can link the question to prediction

Back ground - both I and wife changed jobs in recent past and GC process will start only after few months.
My wife's priority date is mid Dec 2014.
My PD is June 2015. Both EB2I

By the time hiring process starts, wage determination, perm etc is filed and approved , it will be another 18 months at least.
By then, her H1B would need renewal. Considering PD is in Dec 2014, I am considering that it will be current from Oct this year.

Second back ground -
My PD is in June 2015, and by the time process starts and ready for 485, it will be another 2 year considering very stiff and slow legal dept due to the nature of my employers domain.

Q - Do you see my PD becoming current in coming fiscal?
Original petitioner is ready to hire me as they are seeing growth but they won't be waiting forever unless I join them in a reasonable time.

Question - in case the legal team/employee considers her/my new job different then original EB file, then will we be still getting H1b extension based on earlier i140? Or it will add complexity as current h1b was based on previous employers i140?
And once the PD gets current, will we be getting H1B extension only for 1 year whether or not same PD is applicable?

1. In my opinion, Dec 2014 seems likely before Oct 22. Depending on visa wastage, pending inventory and SO for next year, dates may or may not retrogress from Oct 22.
2. GC is for future employment, so in my understanding, you should be able to use approved I140 from another employer (different than your H1 sponsor) to extend your H1 beyond 6 years (others can chime in on this too). Usually, once PD is current in FAD chart, it is safe to assume that USCIS will provide H1 extension for 1 year. But again, in some cases, I have seen approval greater than 1 year as well.

[kapilsharma]

Not sure write forum. Case stuck in downgrade from eb2 to eb3? What I can do to expedite it? Any advice

[montyp80]

Not sure write forum. Case stuck in downgrade from eb2 to eb3? What I can do to expedite it? Any advice

You haven't provided many details.
PD, Service Center, Interfile status etc.

But from what all I have seen other people are doing:
1. Interfile/Refile (interfile is surely much quicker and least expensive if you decide to go with a lawyer)
2. Once interfiled, follow it up with USCIS/EMMA, Tier1/2 calls, WKD requests etc
3. Political inquiry (call your local reps, senator, congressman/woman and have them follow up with USCIS)
4. Be persistent

[kapilsharma]

Thanks.does it make sense to refile it again. But not sure does it requires new PERM. I think answer is no but can you please confirm.

My employer was keep saying no for downgrade and when finally they filed with downgrade only..

[PDDEC232014]

Hi Folks,
My PD is Dec 23 2014 EB2
What is likely timeline for my PD getting current
Thanks

[Sebiswaiting]

Highly probable that all of Dec 2014 EB2 will be current on or before Oct 2022 visa buletin. If you are lucky it may be current as early as July.

Hi Folks,
My PD is Dec 23 2014 EB2
What is likely timeline for my PD getting current
Thanks

[LeoAugust]

Hope USCIS keeps their promise this time
https://twitter.com/USCIS/status/1529493517894131712

[Positive]

EAD is not a status but when one starts using EAD then you lose your H1 status and then your only status is AOS pending which technically is not even a status. It is just a limbo state that is recognized by AC21 law signed during clinton administration.

If a person is already in such a limbo state and waiting to be adjusted to immigrant status by virtue of AC21 then for the life of me I don't understand why changing basis is any problem at all. USCIS is very creative when it comes to stopping Indian/brown immigration. They come up with all sorts of crap and that's what this is. Their rules have no basis in law but then an immigrant who already is in a weak position can't go about challenging them.

Government agencies create their own rules and regulations and USCIS does too. But imho this whole thing about basis transfer is relatively new and they just came up with some explanation to control such transfers. That's how I see it!

For the record, I let my H1B lapse after I filed AOS in EB3. My date will become current in EB2 next month and my immigration lawyer confirmed that my lack of non-immigrant status is not a hurdle to interfiling.

[LeoAugust]

Hi Gurus,

Please suggest me here. From Jun-1-2022 I will be current. I have already filed my EB3 on Oct-29-2020 with I140 approved and refiled 485 under EB2 on Apr-01-2022. Post filling my applications both EB2 and EB3 is at NBC and yet to be assigned to FO. But at present I am seeing all the approvals are coming from SRC are the interfiled cases .
Do you suggest to go for interfile or just wait and watch now. Appreciate any advice on this.

Also, Do you think, Dec-2013 cases will be adjuducated before Sep-30-2022?

Appreciate any comment and suggestion.

Thanks

[gammaray]

Hi Gurus,

Please suggest me here. From Jun-1-2022 I will be current. I have already filed my EB3 on Oct-29-2020 with I140 approved and refiled 485 under EB2 on Apr-01-2022. Post filling my applications both EB2 and EB3 is at NBC and yet to be assigned to FO. But at present I am seeing all the approvals are coming from SRC are the interfiled cases .
Do you suggest to go for interfile or just wait and watch now. Appreciate any advice on this.

Also, Do you think, Dec-2013 cases will be adjuducated before Sep-30-2022?

Appreciate any comment and suggestion.

Thanks

Multiple I-485's are generally not recommended, was that something your lawyer advised?

How do you know the application is not "assigned" to a FO. There are generally no updates for that (USCIS does that internally), and approval or receipt notices often come directly from NBC, unless of course an application is picked up for an interview.

Since USCIS has been harping on interfiling since a couple or so months now, I would think that would be effective and the way to proceed. Not sure what effect the additional I-485 will have on the process.

FAD from next month is till Sep 2014, and it's USCIS stated intention to "attempt" to use all available visas -- in which case Dec 2013 PDs should get it by Oct'22 especially all the documentarily completed applications.

[LeoAugust]

Multiple I-485's are generally not recommended, was that something your lawyer advised?

How do you know the application is not "assigned" to a FO. There are generally no updates for that (USCIS does that internally), and approval or receipt notices often come directly from NBC, unless of course an application is picked up for an interview.

Since USCIS has been harping on interfiling since a couple or so months now, I would think that would be effective and the way to proceed. Not sure what effect the additional I-485 will have on the process.

FAD from next month is till Sep 2014, and it's USCIS stated intention to "attempt" to use all available visas -- in which case Dec 2013 PDs should get it by Oct'22 especially all the documentarily completed applications.

Multiple I-485's are generally not recommended, was that something your lawyer advised?
--Yes. EB2 filling was recommended by attorney

How do you know the application is not "assigned" to a FO. There are generally no updates for that (USCIS does that internally), and approval or receipt notices often come directly from NBC, unless of course an application is picked up for an interview.
--I talked to EMMA. Live agent mentioned it is not assigned to any FO.

[gammaray]

Multiple I-485's are generally not recommended, was that something your lawyer advised?
--Yes. EB2 filling was recommended by attorney

How do you know the application is not "assigned" to a FO. There are generally no updates for that (USCIS does that internally), and approval or receipt notices often come directly from NBC, unless of course an application is picked up for an interview.
--I talked to EMMA. Live agent mentioned it is not assigned to any FO.

Not sure I understand --- so originally your I-140 was approved under EB2, then in Oct 2020 you filed a concurrent I-1485/downgrade I-140 to Eb3 (though if that was the case your application should not be at NBC unless it was transferred after), then in April 2022 filed another I-485 using the original EB2 I-140 instead of interfiling?

[LeoAugust]

Not sure I understand --- so originally your I-140 was approved under EB2, then in Oct 2020 you filed a concurrent I-1485/downgrade I-140 to Eb3 (though if that was the case your application should not be at NBC unless it was transferred after), then in April 2022 filed another I-485 using the original EB2 I-140 instead of interfiling?

EB2 I140 was approved before. Downgrade EB3-I140 approved which was filed on Oct-2020. Apr-1-2022 Eb2-485 was filed and it went to NBC. The moment EB2 was filed EB3-485 moved to NBC. So I am not certain the EB3 movement was because of refile or it was moved from SRC to NBC as many applications were moving.

So my case was never interfiled, though USCIS has been asking to go for interfile.

[qesehmk]

For the record, I let my H1B lapse after I filed AOS in EB3. My date will become current in EB2 next month and my immigration lawyer confirmed that my lack of non-immigrant status is not a hurdle to interfiling.

Thanks Positive. Your first hand experience could be quite useful for others.

[montyp80]

Thanks Positive. Your first hand experience could be quite useful for others.

From what it looks like, for all interfilers, USCIS is only looking for at least one previously approved EB2I140 (with the same or old employer) to consider and accept the TUB request. The intent from USCIS is very clear, issue as many visas as possible this year. Hopefully, the wastage will be less than 10%.

[vsivarama]

EB2 I140 was approved before. Downgrade EB3-I140 approved which was filed on Oct-2020. Apr-1-2022 Eb2-485 was filed and it went to NBC. The moment EB2 was filed EB3-485 moved to NBC. So I am not certain the EB3 movement was because of refile or it was moved from SRC to NBC as many applications were moving.

So my case was never interfiled, though USCIS has been asking to go for interfile.

Since you have already refiled, I would say just let your EB3 application be and do not interfile. Your case is in NBC which is a good thing and for the refiles they are reusing your biometrics etc. from EB3. If ever in future you are pushed to EB3 (not likely in this FY) as it has more favorable date, you are already in the queue instead of bouncing around.

[LeoAugust]

EB2 I140 was approved before. Downgrade EB3-I140 approved which was filed on Oct-2020. Apr-1-2022 Eb2-485 was filed and it went to NBC. The moment EB2 was filed EB3-485 moved to NBC. So I am not certain the EB3 movement was because of refile or it was moved from SRC to NBC as many applications were moving.

So my case was never interfiled, though USCIS has been asking to go for interfile.

Thanks. I am also thinking in the same line. FP already applied to 485 and all. But last meeting from DHS and the way they were promoting to go for interfile it makes think if I need to go for interfile also all the approvals what we see right now are all intefiles. Again, Thanks for your comment.

[gammaray]

Thanks. I am also thinking in the same line. FP already applied to 485 and all. But last meeting from DHS and the way they were promoting to go for interfile it makes think if I need to go for interfile also all the approvals what we see right now are all intefiles. Again, Thanks for your comment.

So BM was applied for the EB2- I485 as well, and you didn't have to do it again? I'm assuming you sent in medicals and similar documents for both I-485's and don't expect any RFE's for any documentation as such.

I would say given USCIS is making a push to issue as many gc's as possible under EB2, interfiling could be a good bet -- you still have 4 months till Sep 31 and if your application is documentarily complete that should be enough time for you to be issued the gc. You might also get lucky if USCIS automatically considers your case under EB2 (and sees you have another I-485 under EB2 anyway) without you having to interfile.

[montyp80]

So BM was applied for the EB2- I485 as well, and you didn't have to do it again? I'm assuming you sent in medicals and similar documents for both I-485's and don't expect any RFE's for any documentation as such.

I would say given USCIS is making a push to issue as many gc's as possible under EB2, interfiling could be a good bet -- you still have 4 months till Sep 31 and if your application is documentarily complete that should be enough time for you to be issued the gc. You might also get lucky if USCIS automatically considers your case under EB2 (and sees you have another I-485 under EB2 anyway) without you having to interfile.

I agree with the other comments above. Do not worry about interfiling considering your both applications are at NBC. It is very likely that your EB2 refile will be processed first. I have seen instances where USCIS did not even wait for someone to interfile and approved the case in EB2 on the basis of the fact that the beneficiary had previously approved EB2I140. This may very well happen with your case too. Good luck.

[LeoAugust]

Thanks @gammaray and @montyp80 Let's see how it is coming around. Last time my PD was current for two months and this year 4 months. Hopefully USCIS is faster this time...

[Sebiswaiting]

I think you can be optimistic about your case getting processed by Sept 30 this year. USCIS stated in some call earlier about cases filled till April, and in today's AiLa update in immigrationgirl blog, she reported that cases filed up to initial week of June will be processed by Sept 30.

Thanks @gammaray and @montyp80 Let's see how it is coming around. Last time my PD was current for two months and this year 4 months. Hopefully USCIS is faster this time...