For those going the AOS route - page 2

For those of you that are in the US and planning to go the AOS route: (Particularly important for those from the PIC countries and Mexico an don tourist visas.) Be aware that as soon as the... Read More

  1. by   Hathaway
    Suzanne,

    Regarding the AOS route and the unavailability of the option for filing of I-485, I found this from the Hammond Law group's website... if I understand their statement correctly, and if these immigration lawyers are correct, the filing of I-140's and I-765's will still be allowed, with the subsequent issuance of the EAD. Apparently the EAD allows for stay in the US, even if immigrant visas are not yet immediately available.

    I took the liberty of lifting this off the website:
    http://hammondlawgroup.blogspot.com/
    Wednesday, October 11, 2006



    RETROGRESSION IN NOVEMBER

    Although the latest Visa Bulletin, released October 10, brings the bad news the industry has been expecting for months, there is a small “reprieve”. Retrogression for EX visas (Schedule A) will occur in November. However, the November Visa Bulletin established a priority date of October 1, 2005 for the EX/Schedule A category rather than making the category completely unavailable. For Schedule A petitions, the priority date is the date the Immigrant Petition for Alien Worker (Form I-140) was received by the United States Citizenship and Immigration Service (USCIS). This means that only those individuals who filed an I-140 petition on October 1, 2005 or earlier will still be eligible to obtain an immigrant visa either through a consular interview or through the filing of an Application to Adjust Status (Form I-485). Additionally, individuals in the United States will not be eligible to file the Adjustment of Status Application (Form I-485) unless they previously filed an I-140 petition on October 1, 2005 or earlier. Initial concurrent filings of the I-140 and I-485 will be temporarily unavailable beginning November 1, 2006.

    Note that employers can continue to file I-140 petitions and the USCIS can and will continue to approve those petitions. Furthermore, the NVC has confirmed that they currently plan to continue to receive the approved I-140 petitions from the USCIS and conduct "pre-processing" for interviews. However, Consulates will discontinue interviews and granting immigrant visas for Schedule A petitions not filed prior to October 1, 2005.

    Pending Adjustment of Status applications for Nurses and Physical Therapists in the United States will remain pending until additional immigrant visas become available (unless the I-140 was filed before October 1, 2005). The Nurse or Physical Therapist will be able to remain in the United States and eligible to obtain employment authorization during this time.

    (i added the emphasis to attract your attention to that part of the statement from HLG).

    I'd appreciate your take on this matter suzanne... it's only rational to know exactly how people planning to go the AOS method stand before US immigration laws when they get there.

    Thanks in advance...

  2. by   nikita101
    "...Additionally, individuals in the United States will not be eligible to file the Adjustment of Status Application (Form I-485) unless they previously filed an I-140 petition on October 1, 2005 or earlier..."

    This is what I'm really concerned about. I'm in nursing school in the US right now and will graduate in March 2007. I haven't filed anything yet (haven't even started looking for a job). My understanding was that since I don't have OPT anymore, NCLEX, visa screen and AOS ASAP after graduation was my only course of action. Does this lack of visas mean that I will have to leave the country once I graduate? Even if I wasn't born in PIC or mexico?
  3. by   rsmit02
    Quote from nikita101
    "...Additionally, individuals in the United States will not be eligible to file the Adjustment of Status Application (Form I-485) unless they previously filed an I-140 petition on October 1, 2005 or earlier..."

    This is what I'm really concerned about. I'm in nursing school in the US right now and will graduate in March 2007. I haven't filed anything yet (haven't even started looking for a job). My understanding was that since I don't have OPT anymore, NCLEX, visa screen and AOS ASAP after graduation was my only course of action. Does this lack of visas mean that I will have to leave the country once I graduate? Even if I wasn't born in PIC or mexico?
    I think what Hathaws info means is if you are in the usa like you are then you can file your I-140 and get work authorisation while retrogression is in effect you just wont be able to get processed for your green card till visas become available again.

    I truly hope this info is correct it would be great for the many in usa already.

    Ruthx
  4. by   suzanne4
    Quote from sora-sora
    Hi Suzzane4

    I would like to know why you think so.
    I know that you are really familiar with this field.
    Do you just think so ? or do you have another information about this???
    This is per USCIS. They will only accept the I-140 when the visas are no longer current, they will not accept the I-485 or the petition for the EAD.

    Talk to your lawyer, these are documented facts.
  5. by   suzanne4
    Quote from rsmit02
    I think what Hathaws info means is if you are in the usa like you are then you can file your I-140 and get work authorisation while retrogression is in effect you just wont be able to get processed for your green card till visas become available again.

    I truly hope this info is correct it would be great for the many in usa already.

    Ruthx
    Sorry, but 100% wrong. The I-140 only approves the job offer, it is not the petition for the Adjustment of Status, nor the petition for the EAD.

    All file the I-140 no matter where they are, if going for Consular Processing, or AOS. But with AOS, once the visas are not current, USCIS will not accept petitions, only the I-140. And that does not good as far as work is concerned.
  6. by   suzanne4
    Quote from nikita101
    "...Additionally, individuals in the United States will not be eligible to file the Adjustment of Status Application (Form I-485) unless they previously filed an I-140 petition on October 1, 2005 or earlier..."

    This is what I'm really concerned about. I'm in nursing school in the US right now and will graduate in March 2007. I haven't filed anything yet (haven't even started looking for a job). My understanding was that since I don't have OPT anymore, NCLEX, visa screen and AOS ASAP after graduation was my only course of action. Does this lack of visas mean that I will have to leave the country once I graduate? Even if I wasn't born in PIC or mexico?
    Depending on which country that you were born in, there are other options available for you, as long as it is not one of the countries involved.
  7. by   suzanne4
    Quote from Hathaway
    Suzanne,

    Regarding the AOS route and the unavailability of the option for filing of I-485, I found this from the Hammond Law group's website... if I understand their statement correctly, and if these immigration lawyers are correct, the filing of I-140's and I-765's will still be allowed, with the subsequent issuance of the EAD. Apparently the EAD allows for stay in the US, even if immigrant visas are not yet immediately available.

    I took the liberty of lifting this off the website:
    http://hammondlawgroup.blogspot.com/
    Wednesday, October 11, 2006



    RETROGRESSION IN NOVEMBER

    Although the latest Visa Bulletin, released October 10, brings the bad news the industry has been expecting for months, there is a small “reprieve”. Retrogression for EX visas (Schedule A) will occur in November. However, the November Visa Bulletin established a priority date of October 1, 2005 for the EX/Schedule A category rather than making the category completely unavailable. For Schedule A petitions, the priority date is the date the Immigrant Petition for Alien Worker (Form I-140) was received by the United States Citizenship and Immigration Service (USCIS). This means that only those individuals who filed an I-140 petition on October 1, 2005 or earlier will still be eligible to obtain an immigrant visa either through a consular interview or through the filing of an Application to Adjust Status (Form I-485). Additionally, individuals in the United States will not be eligible to file the Adjustment of Status Application (Form I-485) unless they previously filed an I-140 petition on October 1, 2005 or earlier. Initial concurrent filings of the I-140 and I-485 will be temporarily unavailable beginning November 1, 2006.

    Note that employers can continue to file I-140 petitions and the USCIS can and will continue to approve those petitions. Furthermore, the NVC has confirmed that they currently plan to continue to receive the approved I-140 petitions from the USCIS and conduct "pre-processing" for interviews. However, Consulates will discontinue interviews and granting immigrant visas for Schedule A petitions not filed prior to October 1, 2005.

    Pending Adjustment of Status applications for Nurses and Physical Therapists in the United States will remain pending until additional immigrant visas become available (unless the I-140 was filed before October 1, 2005). The Nurse or Physical Therapist will be able to remain in the United States and eligible to obtain employment authorization during this time.

    (i added the emphasis to attract your attention to that part of the statement from HLG).

    I'd appreciate your take on this matter suzanne... it's only rational to know exactly how people planning to go the AOS method stand before US immigration laws when they get there.

    Thanks in advance...
    You are forgetting the key word that is listed PENDING. That means that those that have petitions pending will be able to proceed with those, the others will not be able to. USCIS will not accept a petition for Adjustment of Status once the visas are gone, and that is where the problem comes up. And PENDING refers to those that were already submitted, or submitted before the cut-off date is announced.

    If the nurse is in the US and has not had the petitions already submitted by the time of the cut-off date, and which will be earlier that November 1st, then they will need to return home, especially if they are from one of the countries that are involved. I think that is what you are asking.

    And it sstates nowhere there that the petition for the EAD will be accepted, it states only that the I-140 will be accepted. You must have the I-485 submittes for the Adjustment of Status, for anything else to be able to take place, and they will not be accepting those.
  8. by   embarq
    Everybody can still file I-140 after Nov 1, but no I-485. EAD is an optional petition only if I-485 is filing alone, or has been filed already. Filing I-140 does not allow you to stay in the country unless if you are on student or working visas, or dependent of student or working visa's holders.
  9. by   nikita101
    Quote from suzanne4
    Depending on which country that you were born in, there are other options available for you, as long as it is not one of the countries involved.
    Suzanne,

    I was born in Nigeria. Can you tell me what other options are available to me if I don't have OPT? Should I get a lawyer now and start planning my options or should I wait a little longer? It's not like I can do anything right now since I haven't graduated - so, wait and see?

    Thanks Suzanne.
  10. by   nikita101
    Quote from embarq
    Everybody can still file I-140 after Nov 1, but no I-485. EAD is an optional petition only if I-485 is filing alone, or has been filed already. Filing I-140 does not allow you to stay in the country unless if you are on student or working visas, or dependent of student or working visa's holders.
    Thanks embarg. The I-140 is the initial approval right? I guess that's something. This is all so depressing.
  11. by   suzanne4
    Quote from embarq
    Everybody can still file I-140 after Nov 1, but no I-485. EAD is an optional petition only if I-485 is filing alone, or has been filed already. Filing I-140 does not allow you to stay in the country unless if you are on student or working visas, or dependent of student or working visa's holders.
    Very correct, thank you.
  12. by   suzanne4
    Quote from nikita101
    Suzanne,

    I was born in Nigeria. Can you tell me what other options are available to me if I don't have OPT? Should I get a lawyer now and start planning my options or should I wait a little longer? It's not like I can do anything right now since I haven't graduated - so, wait and see?

    Thanks Suzanne.
    There is not one thing that can be done for you until you take and pass the NCLEX exam, and you cannot do that until you graduate.

    Please take things one step at a time.
  13. by   nikita101
    Yeah, Suzanne you're right. [big sigh]

    It's just that my international student advisor has told me that I'll have 60 days to get my act together and leave once I graduate. I'm not even sure that that's going to be enough time to get the approval, find a venue, take and pass the NCLEX and find a job. Since I'm terrified of being out of status for even one second, I figured it'd be better to figure out a worst-case scenario game plan now rather than wait.

    But, you're right. Nothing can be done until I graduate and pass the NCLEX and worrying over it isn't going to change a damn thing. So, on that note, I'm gonna start studying for my midterms which by the way, start tomorrow...eeek!

    Thanks again Suzanne.

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