USCIS FAQ Part 3

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USCIS has just posted another FAQ regarding concurrent filing of I-140 (Petition for Alien Worker) and the I-485 (Adj. of Status).

Although they have already mentioned this on their previous recent FAQs, Q36 from this new FAQ was very specific to Schedule As.

They will accept I-140s and continue processing it as they have always done BUT starting August 1, 2007 and thereafter, filing of the I-485 (AOS) for those under Schedule A will not be accepted anymore and will be rejected. This new FAQ makes it very clear that the extended time (until August 17, 2007) to file AOS is not for schedule As and are for other categories such as applicants already on H1Bs and others but other than Schedule A.

*Reference: http://www.uscis.gov/files/pressrelease/FAQ3.pdf

I am just trying to get an answer for a hypothetical case and get some possible options if ever I reach the same situation.

My question is: Can I abandon my AOS and revert back to CP and still retain my PD?

Thanks for the answer.

yes you can do CP after filing AOS. here are the links:

http://www.murthy.com/aosfaqs.html

http://www.immihelp.com/greencard/adjustment-of-status-vs-consular-processing.html

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You can adjust your case from CP to AOS, but if the first submission was denied, then you do not keep that PD. And that is what you were asking originally.

And if it gets denied, it gets denied. Does not matter if you are in the country or not, a denial is a denial. A denial and the I-140 is cancelled. You do not get to keep that date that you had been assigned.

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You can adjust your case from CP to AOS, quote]

hi i am here in the US right now, took my nclex here and passed it (I used your study guide. thank you very much for that)

My question is if an employer files an I140 for me and I go back home, will I lose my multiple entry visitor visa?

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Specializes in Medical and general practice now LTC.

you should not loose your multi tourist visa, can not guarantee, but if you do go to the US then bring plenty of proof that you intend to return home. Immigration at the airport will be aware that you have immigration intent and have a file in progress, so it is up to you to prove that you have no intentions of staying until you have your visas. At the end of the day it is up to the officer at POE who will decide whether to allow you in or not. If you do visit the US with your tourist visa make sure that your lawyer is made aware of dates entering and leaving the US as your DS230 will need to be kept up to date

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hi i am here in the us right now, took my nclex here and passed it (i used your study guide. thank you very much for that)

my question is if an employer files an i140 for me and i go back home, will i lose my multiple entry visitor visa?

if you are in the us now, filing of the i-140 (petition for alien worker) alone will not result in cancellation of your visitor's visa but once the i-485 (adj. of status) is filed then your visitor's visa is canceled since you will be adjusting from one status to another. you cannot have it both ways.

also, just to make you aware, i-140s that has not been filed before august 1, 2007 cannot file for adjustment of status anymore since the august visa bulletin made everything "unavailable". so, filing for an i-140 on or after august 1, 2007 cannot have an i-485 concurrently filed with it and some are not aware that the lawyer will actually have to indicate on the i-140 form if it is for consular processing or for adj. of status (form i-140) and this makes some lawyers weary for their clients who are coming from a visitor's visa if they will file just the i-140 alone (to get a priority date) if they cannot file an i-485 anytime soon or even in the near future (last time the eb3 was "current" was in feb. 2005 and the "current" designation in the july, 2007 vb was a fluke) and if their client's valid visitor's stay in the us has lapsed (including all valid extensions of stay, if approved) before an i-485 can be filed on their behalf then the applicant is forced to go home and while an i-140 can be changed to consular processing, how about the applicant's ability to enter the us again on his or her visitor's visa since she already have a history of wanting to stay in the us. will the immigration officer on the point of entry allow her to enter the us again even though she already has a record of wanting to adj. status, whether or not the adj. of status route was discontinued? it will be up to the officer's discretion but if you were the officer, what will you suspect and do if you knew this piece of history from the one trying to come in? i'm not saying the officer will absolutely not accept that person anymore, since it is discretionary or subjective but what if he knew that piece of history, what will he do? if you were in his shoes and knew the history, what will you do? so, you see there are many risks and this is why some lawyers prefer filing the i-140 and the i-485 (plus the ead) all at the same time if it is possible and would rather not file anything at all if it will just be the i-140 that can be filed, esp. if coming from just a visitor's visa and there are no signs of w/c the client or applicant's visa category falls into will be "current" anytime soon. if it were coming from a diff. status, then it would be different.

some lawyers could care less and willing to do anything since they are getting paid one way or another. if the i-140 was indicated for consular processing from the very start, there is virtually no risk at all. none that i know of at least.

in addition, adj. of status can only be filed if the category of w/c the i-140 belongs to is "current" under the visa bulletins. the i-140 can still be filed anytime and the applicant can be anywhere in the world that is why the i-140 is one of those petitions that can be e-filed. an i-485 (adj. of status) can only be filed if the applicant is in the us and resulting in cancellation of the visitor's visa.

note that this just my two cents and am not an 'expert'. pls. try to consult a competent and honest immigration lawyer for details.

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Specializes in Medical and general practice now LTC.

nice one Lawrence I just looked at the question of them returning home

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As I promised I am updating my AOS case. My application has been accepted by the USCIS and got the reciept number. It has not been returned as every one else afraid.

Thanks for all of your input and help.

lady123

To clear up a few things, the I-140 does not require a Labor Certification that other jobs require. However, the I-140 does require that the job has been posted for at least ten days in a public venue and then have a thirty day wait period before the I-140 can be submitted. This is different from the actual Labor Certification. And a facility cannot legally offer a job until you have passed the NCLEX-Rn exam in the first place. So you need to add on to that time. The only time around that is if the nurse is under the OPT, and only with that can they offer a job without the NCLEX-RN being passed. The other issue is that the letter from the BON must be included with the petition, not just proof taken from the computer that someone has passed, and that takes about three weeks for the attorney to get that.

There was never any mention that the I-140 could not be filed, but that the requirements must have been met for it to be submitted. The mention was that no AOS could be started and that is the I-485. And when there were no visas available, most attorneys just told their clients to wait until something was posted. This is not information that I just came up with. If you do not like what I post, then you do not need to listen to it, that is your choice. But I have been more up front and honest with how things are done, and I am not getting paid for it. Attorneys are, and some have been known to give very bad information to their clients, not caring what happens to them. USCIS has already stated more than once that they will return any petiton that is not complete, they are not going to hold onto things waiting for other documents to be sent. And all attorneys are aware of this, but not all are following it. And as Lawrence stated, the attorney gets paid when the petition is submitted, they could care less if it gets denied. And since USCIS was forced to accept petitions when there are no visas available, only means that you are also going to see a much higher incidence of denials. That means proof of passing of the NCLEX exam from a letter from the BON, the proof of posting, and even the VSC is being requested to be filed initially due to the fact that many from last year were unable to pass the English exams and have their EADs cancelled. They do not want to waste their time. So I still stand by what I have stated over and over again.

Just because they have to accept, does not mean that they need to approve it.

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