I485 Information, details and scenario playout

[Immig7]

@Qsehmk @Transformer - Thank you very much for the response, and I agree about the vacation.

@transformer -
1. Back in October, our lawyers wanted to downgrade only if the priority date under EB3 is current for us. Else, they don't want to downgrade not knowing how things will turn up for Eb2.
2. Also, the company lawyer says that once they downgrade to EB3, we will not be able to go back to EB2 I140. I am not sure where they cancel the I140 or why they would do that, but apparently they say that once we start the downgrade Eb2 I140 will go away. I am double checking with them on why they have to do that.
3. Now, if i downgrade to Eb3 (w/o Eb2 active as per 2), and obviously the 140 approval won't come in for the next 8-9 months. In that case, will I not miss out on filing 485 as well if the Eb3 dates become current for me by then? Can I file a 485 with Eb3 I140 which has still not been approved? i thought they need an approved 140 to file 485 - with downgrade application?
4. I am just stuck with where Eb2 goes versus EB3 goes in October as nothing's clear as yet.

please let me know what you think. And thanks a bunch!

3.

[Immig7]

Thanks sstest. I have reached out to the lawyers on their insistence for an amendment as against a new 140. I guess they are going by the books. I will let you know what they come back with. Else as you said, downgrade + 485 and then 140 PP is the best bet. To think of it, if they go with a new I140 (and not an amendment), then we should be first able to do it as PP right?

[mmax123]

Based on your PD it makes sense to apply 140 in EB3. You can file EB3 140 in PP along with your 485 if your PD is current. Not advisable to apply both in Premium since you have only one original PERM. I don't see any need for you to go EB2 route. Or you can wait until October bulletin and apply 140 in whichever category more favorable to you (may be along with 485).

Thanks Transformer.

To clarify, USCIS accepts EB3 I140 with premium processing for EB2 PERM without any issues?

Is it advisable to first get EB3 I140 with PP approved, before filing 485? Or the recommendation would be to concurrent file EB3 I140 in PP + 485?

[GCkaLADDU]

Switching from H1B to EAD due to location change

Need some guidance from experts here . I have a valid H1B visa until June 2023 and got my EAD valid for 2 years few weeks back. My current project is wrapping up and I don't want to go through an amendment to get a new project at my desired location. I am inclining towards switching to EAD but little fuzzy on what will happen to my current valid H1B if I make the switch. I know its not revoked but what exactly happens to H1B. Does it go into some kind of dormant state?

Can it still act as a plan B to keep me in status if incase something crazy happens and my AOS application is denied?

[sstest]

........ if they go with a new I140 (and not an amendment), then we should be first able to do it as PP right?

That's what is happening with one of my friends. Their company is additionally filing EB3 I-140 for every EB2 straight filer even if they are current in EB2. I can ask for details but my understanding is that without the original perm(which was used for EB2 I-140, you can not do PP.
The main issue with including PP request with I-140 is around the risk that they may reject the whole packet if perm is not available - lawyers need to request USCIS to pull it from their files(or so was I told).

I don't think anything is stopping you from turning around and filing premium as soon as you get the receipt notice.

[mitul75]

Can I file a 485 with Eb3 I140 which has still not been approved?

I-485 can be filed concurrently with I-140, or at any time after I-140 filing, as long as your priority date is current for filing and your PERM is approved.
https://www.uscis.gov/green-card/gre...-of-form-i-485

An approved I-140 is a prerequisite for the approval of I-485.

[mmax123]

Thanks Transformer.

To clarify, USCIS accepts EB3 I140 with premium processing for EB2 PERM without any issues?

Is it advisable to first get EB3 I140 with PP approved, before filing 485? Or the recommendation would be to concurrent file EB3 I140 in PP + 485?

Hello Gurus,

I would much appreciate if I can get clarifications on my questions above.

Thanks!

[Transformer]

Thanks Transformer.

To clarify, USCIS accepts EB3 I140 with premium processing for EB2 PERM without any issues?

Is it advisable to first get EB3 I140 with PP approved, before filing 485? Or the recommendation would be to concurrent file EB3 I140 in PP + 485?

There is no EB2 PERM and EB3 PERM. If your PERM requirements qualify you for EB2 140 then they will automatically qualify you for EB3 140. That shouldn't be a problem for your EB3 PP.

As I mentioned you have both the options. But if I were you, I will apply for 140 in PP and then file for 485. This is based on what we have seen in October 2020. All the 485 applications with a 140 attached went to Nebraska or Texas where as no 140 applications went to NBC. We have seen that NBC is way faster compared to Nebraska and Texas. Hope this makes sense.

[mmax123]

Thank you very much. Yes, makes sense. My situation is better than I thought since I can apply EB3 I140 in PP directly. Yes, I think will apply I140 first, and then rest of the application, as you advised.

[sudebusa]

Thanks, andraguy!

Will go to doctor's office as soon as his staff gives me date and time and will ship the packet from there itself (good thing is doctor's office and FO are in same city, hopefully that will save a day).

Hi @PDAUG2011 -

Could you please share a little more details such as which service center and did you do EB2 to EB3 downgrade?

My PD is Sep 2011; did downgrade to EB3, applied I-485 in Oct-2020, FP is done, I-140 has been approved in early June-2021 after upgrading to PP. I am asking because my FO is also Chicago and per my last interaction with Live Agent, my application is still sitting with SRC (TX).

Thanks.

[gammaray]

Switching from H1B to EAD due to location change

Need some guidance from experts here . I have a valid H1B visa until June 2023 and got my EAD valid for 2 years few weeks back. My current project is wrapping up and I don't want to go through an amendment to get a new project at my desired location. I am inclining towards switching to EAD but little fuzzy on what will happen to my current valid H1B if I make the switch. I know its not revoked but what exactly happens to H1B. Does it go into some kind of dormant state?

Can it still act as a plan B to keep me in status if incase something crazy happens and my AOS application is denied?

If you start using the EAD -- which in your case, since you are not changing employers, would mean employer changing the I-9 --- the H1B will have ended. And you can't go back to the H1b easily (requires consular processing and I think approval is not straightforward either).

You can't keep the current h1b active without doing a timely amendment.

[idliman]

Switching from H1B to EAD due to location change

Need some guidance from experts here . I have a valid H1B visa until June 2023 and got my EAD valid for 2 years few weeks back. My current project is wrapping up and I don't want to go through an amendment to get a new project at my desired location. I am inclining towards switching to EAD but little fuzzy on what will happen to my current valid H1B if I make the switch. I know its not revoked but what exactly happens to H1B. Does it go into some kind of dormant state?

Can it still act as a plan B to keep me in status if incase something crazy happens and my AOS application is denied?

AOS gets rejected only for employer / employee fraud, criminal or national security type issues. There must be some extreme situations or some kind of fraud to catch the eye of AO.

I-9 is not submitted to USCIS. Employers must keep it on file for three years after hire or one year after employment is terminated, whichever is later. E-verify is optional and DHS will know immediately. If you are in the same company sometimes HR might not file updated I-9 for project change situations as it is not immediately visible to them. Whatever happens make sure that you have a valid EAD/AP. That is your safety net for this situation.

H1-B is for a specific job at a specific location for a specific employer. If anything changes you have to go through the amendment process.

[gammaray]

AOS gets rejected only for employer / employee fraud, criminal or national security type issues. There must be some extreme situations or some kind of fraud to catch the eye of AO.

I-9 is not submitted to USCIS. Employers must keep it on file for three years after hire or one year after employment is terminated, whichever is later. E-verify is optional and DHS will know immediately. If you are in the same company sometimes HR might not file updated I-9 for project change situations as it is not immediately visible to them. Whatever happens make sure that you have a valid EAD/AP. That is your safety net for this situation.

H1-B is for a specific job at a specific location for a specific employer. If anything changes you have to go through the amendment process.

This is true with regards to employers possibly not using E-verify or not updating the I-9. However, irrespective of DHS/USCIS becoming aware (or not) that the EAD is being used, the H1b has technically invalid/ended because the OP is working in a new location/client. Personally, I wouldn't risk trying to extend that H1B in the future (assuming USCIS is unaware that an EAD is being used) after not having filed an amendment at the correct time.

[tenyearsgone]

This is true with regards to employers possibly not using E-verify or not updating the I-9. However, irrespective of DHS/USCIS becoming aware (or not) that the EAD is being used, the H1b has technically invalid/ended because the OP is working in a new location/client. Personally, I wouldn't risk trying to extend that H1B in the future (assuming USCIS is unaware that an EAD is being used) after not having filed an amendment at the correct time.

I have gone through this previously. File AOS with Employer A, switched to EAD with Employer B and then back to H1B with Employer C. I joined C on EAD and filed for H1B (cap exempt based on previous H1B) with consular processing. Since I had joined on EAD, I traveled for H1B stamping when convenient and re-entered on H1B and filed a new I9 with C.

[gammaray]

I have gone through this previously. File AOS with Employer A, switched to EAD with Employer B and then back to H1B with Employer C. I joined C on EAD and filed for H1B (cap exempt based on previous H1B) with consular processing. Since I had joined on EAD, I traveled for H1B stamping when convenient and re-entered on H1B and filed a new I9 with C.

What I meant was -- OP's current H1B is valid till 2023, so him applying for an extension of that particular h1b prior to its expiry as an EOS and not CP, assuming that USCIS is not aware that the EAD is being used (Since he didn't change employers).

On a separate note, it's good to know anecdotally that switching back to h1b from EAD is successful. Murthy et al. generally advise to avoid doing that, if possible, since CP has it's associated risks.

[hubofquestions]

Hi

Need some help. My PD is Dec 2010. Due to some personal reasons I went to India and I won't be able to come back to U.S for few more months. Can I file my AOS after I come back to U.S(provided my PD is still current). I have read in some websites that if you don't file I-485 within one year of Priority date becoming current ..it is considered as abandonment of application. Is this true?

Thanks

[idliman]

I have gone through this previously. File AOS with Employer A, switched to EAD with Employer B and then back to H1B with Employer C. I joined C on EAD and filed for H1B (cap exempt based on previous H1B) with consular processing. Since I had joined on EAD, I traveled for H1B stamping when convenient and re-entered on H1B and filed a new I9 with C.

Thanks for sharing your experience.

I don't know what the PD of OP is. If it is reasonable, then he/she can give up H1-B and move on to AOS EAD/AP. Everyone likes a safety net, but sometimes situations don't allow that. OP, please make sure that you file a renewal 180 days in advance.

[srimurthy]

I have gone through this previously. File AOS with Employer A, switched to EAD with Employer B and then back to H1B with Employer C. I joined C on EAD and filed for H1B (cap exempt based on previous H1B) with consular processing. Since I had joined on EAD, I traveled for H1B stamping when convenient and re-entered on H1B and filed a new I9 with C.

Should we be focusing on if the H1B has crossed the 6 years limit, and you can still file under cap exempt? Or it has to be with in that 6 years usage limit to be considered for Cap Exempt?
Most of us who have PD's in 2010, 11, 12 will be beyond the 6 years limit of H1.

[tenyearsgone]

Should we be focusing on if the H1B has crossed the 6 years limit, and you can still file under cap exempt? Or it has to be with in that 6 years usage limit to be considered for Cap Exempt?
Most of us who have PD's in 2010, 11, 12 will be beyond the 6 years limit of H1.

The number of years doesn't matter if you have an approved I-140 and a pending AOS application. My cap-exempt extension was for over 6 years of usage.

Everyone likes a safety net, but sometimes situations don't allow that.

Agreed. It just happened in my situation that my employers were willing to move back to H1B and the lawyers also preferred that status. For folks in consulting jobs, the H1B amendment scenario comes into play frequently and so EAD might be the more frictionless option.

[hubofquestions]

Hi

Need some help. My PD is Dec 2010. Due to some personal reasons I went to India and I won't be able to come back to U.S for few more months. Can I file my AOS after I come back to U.S(provided my PD is still current). I have read in some websites that if you don't file I-485 within one year of Priority date becoming current ..it is considered as abandonment of application. Is this true?

Thanks

Hi

Any advice on this?

Thanks

[iamdeb]

My I-485 application was sent via Fedex to following address. Is it the correct address for Georgia resident?

Attn: NFB AOS
2501 S. State Hwy, 121 Business
Suite 400
Lewisville, TX 75067

[iamdeb]

can we send the I-485 application directly to NBC instead of sending it to Texas Service Center where there is a huge backlog...

[iamdeb]

can we send the I-485 application directly to NBC instead of sending it to Texas Service Center where there is a huge backlog...

would really appreciate any feedback on this topic

[Zenzone]

can we send the I-485 application directly to NBC instead of sending it to Texas Service Center where there is a huge backlog...

Not sure if you can chose the service center. You may want to check that with your attorney. I think geography and application types will dictate where to send if I'm not wrong. Also, remember that these conditions could change so your attorney should know the best.

[bangaloreboy]

Hola all,
My I-765 status changed to "New card being produced" Jul 23rd. No change in status for Derivate EAD application.

PD: 30-Jun-2010 EB2-I
AOS/EAD/AP Application RD: 28-Oct-2020
I-485/I-765 Biometrics Notice Date: 06-Mar-2021
Biometrics Completed: 01-Apr-2021
Service Center: NBC
ASC: Philly
I-765: New card being produced: 07-23-2021