my first i-485 (concurrently with i-140 pursuant to schedule a) was filed validly since i was on h4. however, my first i-485 was denied one year after its filing (unable to provide visascreen certificate). i did not renew my h4. my second i-485 was filed almost immediately after the denial of my first i-485. i have been working on ead in us since (two on the first i-485, one from the second).
i was told that my second i-485 was not filed properly, meaning i was not on nonimmigrant status at the time of second filing my i-485 and worst of all, 245(k) did not apply in my situation since the time when i was out of status was counted from the time when my h4 expired but not from the time the first i-485 was denied. is there an argument to make that the 180 days could be counted when the first i-485 was denied?
if you have similar situation, please share it here. or if there is such a thread, please let me know. unfortunately, this situation arises from concurrent filing of i-140/485 and the difficulty of obtaining visascreen certificate. what is the solution to this? what is your way out?
I agree with Jilaf. We are in h4/H1B and today I am going to file the AOS without a VSC!!!!.No attorney has told me that our h1b/h4 status will be lost unless we use EAD. h4/h1b is dual intent visa (immigration a nd non immigration intent). I will post the development.In the worst case I can enjoy some good time in my native country for some time if what Suazanne says is correct!! but I dont think so.......
Lady123
Thanks for your input!
But I strongly disagree with you on this: filing 485 invalidates H1/H4 status.
My understanding is: using EAD/AP on 485 may invalidate H1/H4 status. H1/H4 can keep their non-immigrant status as long as they don't use EAD or AP.
By the way, my wife got her VisaScreen certificate a few months ago, and we filed 485 based on her employment again on June 29th (delivered on July 2nd). No response so far: no package returned, no receipt, no check cashed. Hope the bridge legislation can get passed and all of us can get green card soon!
Seriously suggest that you follow up on this. And for sure you will be getting the I-485 petition returned, that was in the memo that was released on July 2nd. They stated that there were not accepting them and would be returning all that arrived then. They did not start to accept them until July 17th, any before are being returned.
According to the last paragraph of the July 17 USCIS Update applications already properly filed with USCIS will also be accepted.
And the magic word is properly filed, the slightest mistake and it will be thrown out, but who is to say that the ones filed on the 2nd July haven't already been returned.
And the magic word is properly filed, the slightest mistake and it will be thrown out, but who is to say that the ones filed on the 2nd July haven't already been returned.
I trust USCIS inspite of what happened last month. If USCIS says that they are now going to accept the same applications that they were supposed to have rejected on July 2, USCIS should accept them. If they are properly filed, of course.
Mine was filed on July 2. No receipt notice yet but this is due to the volume of applications being received as explained in Question 18 of the July 23 FAQ released by USCIS.
I agree with Jilaf. We are in h4/H1B and today I am going to file the AOS without a VSC!!!!.No attorney has told me that our h1b/h4 status will be lost unless we use EAD. h4/h1b is dual intent visa (immigration a nd non immigration intent). I will post the development.In the worst case I can enjoy some good time in my native country for some time if what Suazanne says is correct!! but I dont think so.......
Lady123
And I checked with three other of my sources this afternoon, and they still all say that I am correct.
What you are not understanding is how the US processed the I-485. It is its own petition, and is not the EAD or anything else. But is called the Adjustment of Status petition, meaning that once it is submitted, the visa that were under fails to exist. It is cancelled by immigtration that is why if you wish to travel out of the US, then you must get the I-131, the Advanced Parole as you no longer have a valid visa. If your H4 was valid, then you would not need the I-131. Think about that.
It is not a point of dual intent or anything else. In order to even be able to go the AOS route, you have to be in the US on another valid visa. You cannot adjust a visa if you do not have one to begin with. So all that are wishing to go thru AOS must be in the US on a non-immigrant visa to begin with.
You are free to do as you please, but I am just being honest with what happens. Your attorney gets paid for completing and filing your petition, it does not matter to them if it gets denied.
And I do suggest that you go back and read the notice that immigration posted back on July 2nd, and it states that they will not accept a petition if it is not complete 100%, and not having the VSC with the I-485 is automatic for it getting returned to you.
The other key factor that you are not paying attention to is that immigration was forced into accepting petitions for visas that do not exist at this time. There is nothing that says that they need to approve all petitions, they are going to be extremely picky on this.
And do you already have the I-140 submitted? If it was not done before the 31st, you will be unable to submit the I-485. This is not the place to argue with me, I do not gain anything from you doing as you please. I am just trying to save some from making big mistakes and having to deal with the consequences later on.
I trust USCIS inspite of what happened last month. If USCIS says that they are now going to accept the same applications that they were supposed to have rejected on July 2, USCIS should accept them. If they are properly filed, of course.
Mine was filed on July 2. No receipt notice yet but this is due to the volume of applications being received as explained in Question 18 of the July 23 FAQ released by USCIS.
They are not accepting any that were submitted prior to July 17th. They issued a statement to that effect already. Anything that was submitted on July 2nd is being returned.
Do not expect to get a receipt for that petition, but expect for it to be returned. And how was it filed on July 2nd if they were not accepting them? It means that yours was mailed then, not hand delivered. So therefore no receipt was issued at all. That is where the other part of the problem is.
The bulletin states that they will only accept them from July 17th, and since they are forced to do that, they are going to be very picky. Remember that there are no visas available.
You are free to hope and wish but as I stated above, your attorney gets paid on the fact that they got the petition completed, not that it is approved, or anything else.
For those here that do not like what I have stated here, please do me the honor and post what actually happens with your petitions. I would love to see it.
I have been proven correct with each time that I have said something like this and others did not like it. I do this as a volunteer, nothing more, and I enjoy helping people and do not like to see it when they get bad advice that they paid for.
The choice is yours, it is your money and time. Best of luck. I would love to be proven wrong for your sake, but I know that I am correct in what I have posted.
With all the due respect of your intention I must say that you are only partially correct .
The one point you are quoting repeatedly is that that once one applied for AOS the other visa get cancelled.It may be true for visitor or J1 visa. but not for H1b/H4. Before first consulting wth many other sources , if you could have well read the USCIS instruction on I485 yourself you would be better informed by these sources. It says that,
" A. H, L, V or K3/K4 nonimmigrants:
If you are an H, L,V, or K3/K4 nonimmigrant whocontinues to maintain his or her status, you may travelon a valid H, L, V or K3/K4 visa without obtainingadvance parole. "
If you were correct that the visa get cancelled on submitting the AOS/485 the above clause would have been no place in the instructions. There may be instances that people had to back to country from where he/she comes not because just the reason that they submitted the AOS and it got denied. There can be many other reasons like using the EAD, not maintaining the dual intent non immigration visa (H1/H4,L,etc) status .
July 2 - July 17th submission
I am not sure on this as I was not keen in this case. But I learned that there are instances that the individuals get reciept notices as I learned from other sources. Since it is an 'other source' I am not sure how much it is true.
AOS without VSC: You may be correct . But the word 'proper filing' has many meanings. It can be just the initial check that are normally done , like, signature ,check, etc, where the appication is not elgible to be accepted. I do not think RFE causing evidences will not come in this 'properly filed' clause. Any way, the VSC submission time is a grey area and I just took a chance. My lawyer says that it is fine and only need to submit at the time of RFE. Here I may have different opinion than my lawyer , but I took a chance based on the fact that I wont be out of status even if the I 485 is denied.
I am also not looking for an immeadiate GC as the visa number wont be available for few years,especially for my country. But it enables me to work till a decission comes on the AOS.
Regarding my case: the petition for I140 had been e-filed on July 30th so good to go for the AOS before Aug 17th. I will update how it goes.
(NB:I WANT TO EMPHASIS TO OTHER READERS THAT ABOVE CASE IS BASED ON A DUAL INTENT IMMIGRANT VISA LIKE H1b/h4,L1/L2.IF YOU ARE IN OTHER NON IMMIGRANT VISA LIKE B1/B2,ETC YOU MAY BE OUT OF STATUS IF YOUR AOS PETITION IS DENIED. BE CAREFUL.)
lady123
And I checked with three other of my sources this afternoon, and they still all say that I am correct.
What you are not understanding is how the US processed the I-485. It is its own petition, and is not the EAD or anything else. But is called the Adjustment of Status petition, meaning that once it is submitted, the visa that were under fails to exist. It is cancelled by immigtration that is why if you wish to travel out of the US, then you must get the I-131, the Advanced Parole as you no longer have a valid visa. If your H4 was valid, then you would not need the I-131. Think about that.
It is not a point of dual intent or anything else. In order to even be able to go the AOS route, you have to be in the US on another valid visa. You cannot adjust a visa if you do not have one to begin with. So all that are wishing to go thru AOS must be in the US on a non-immigrant visa to begin with.
You are free to do as you please, but I am just being honest with what happens. Your attorney gets paid for completing and filing your petition, it does not matter to them if it gets denied.
And I do suggest that you go back and read the notice that immigration posted back on July 2nd, and it states that they will not accept a petition if it is not complete 100%, and not having the VSC with the I-485 is automatic for it getting returned to you.
The other key factor that you are not paying attention to is that immigration was forced into accepting petitions for visas that do not exist at this time. There is nothing that says that they need to approve all petitions, they are going to be extremely picky on this.
And do you already have the I-140 submitted? If it was not done before the 31st, you will be unable to submit the I-485. This is not the place to argue with me, I do not gain anything from you doing as you please. I am just trying to save some from making big mistakes and having to deal with the consequences later on.
And I just got off the phone with some of my immigration consultants, and they told me that I have been 100% correct in the information that I gave you.
Seriously suggest that you follow up on this. And for sure you will be getting the I-485 petition returned, that was in the memo that was released on July 2nd. They stated that there were not accepting them and would be returning all that arrived then. They did not start to accept them until July 17th, any before are being returned.
Sorry, Suzanne, I would just like to clarify that the July 2nd Visa Bulletin which you are referring to has already been withdrawn by the USCIS last July 17 and the June 12 Visa Bulletin should be relied upon as the current July Bulletin.
Exactly, my point. USCIS refused to accept petitions for the I-485 on July 2nd. And when the new notices were released, it was posted as accepting them only beginning on July 17th, not before.
And again, if they refused to accept any that were hand delivered on July 2nd, then they cannot legally do anything with those that were sent by mail then, only return them. Nothing more.
This is the last post that I am making on this topic:
If a petition is returned immediately for what ever reason, then immigration also returns the fee that was enclosed.
However, if they take a look at it and review it, and then deny it because it did not meet the requirements, the fee is not returned, and you will be paying the fees all over again.
---------------------------
Each is entitled to their own opinion, I was asked for mine and I gave it. And based on what I have seen over the years. And if an H-4 renewal is in processing, it means that it is not current that day, and therefore the visa is not current to be adjusted. That was the point of this thread in the first place. Not meant to be a place to try and correct things that I have posted. I still stand by what I have written.
I do not get paid for the volunteer time that I put in here, just very tired of nurses getting taken advantage of. If you want to listen to what I have written great, if you do not wish to read them, you can put me on ignore and then you do not need to read them.
And there are good and bad attorneys, the same way that there are good and bad surgeons. Some just like to collect fees, they get paid each time that they file, if denied, they still get paid.
And when immigration comes out and states that they are only accepting a completed file, and this is because there are no visas to begin with, they are not going to waste their time and energy with RFEs. Just because an attorney told you that it was okay, does not mean that it will happen. Have seen it way too many times before.
Please let me know when you actually get a letter from immigration and what it states. I wish I would not be proved correct, but only time will tell.
This is the last post that I am making on this topic:
If a petition is returned immediately for what ever reason, then immigration also returns the fee that was enclosed.
However, if they take a look at it and review it, and then deny it because it did not meet the requirements, the fee is not returned, and you will be paying the fees all over again.
---------------------------
Each is entitled to their own opinion, I was asked for mine and I gave it. And based on what I have seen over the years. And if an H-4 renewal is in processing, it means that it is not current that day, and therefore the visa is not current to be adjusted. That was the point of this thread in the first place. Not meant to be a place to try and correct things that I have posted. I still stand by what I have written.
I do not get paid for the volunteer time that I put in here, just very tired of nurses getting taken advantage of. If you want to listen to what I have written great, if you do not wish to read them, you can put me on ignore and then you do not need to read them.
And there are good and bad attorneys, the same way that there are good and bad surgeons. Some just like to collect fees, they get paid each time that they file, if denied, they still get paid.
And when immigration comes out and states that they are only accepting a completed file, and this is because there are no visas to begin with, they are not going to waste their time and energy with RFEs. Just because an attorney told you that it was okay, does not mean that it will happen. Have seen it way too many times before.
Please let me know when you actually get a letter from immigration and what it states. I wish I would not be proved correct, but only time will tell.
lady123
32 Posts
I agree with Jilaf. We are in h4/H1B and today I am going to file the AOS without a VSC!!!!.No attorney has told me that our h1b/h4 status will be lost unless we use EAD. h4/h1b is dual intent visa (immigration a nd non immigration intent). I will post the development.In the worst case I can enjoy some good time in my native country for some time if what Suazanne says is correct!! but I dont think so.......
Lady123