Question: What is I-485 Pre-adjudicate/Pre-adjudication?

You are at the last step of the green card process. Your priority dates became current, you filed the I-485, then the priority dates slipped back two years, at this time USCIS has two choices. They can either put your file in their filing cabinet and forget about the case, until the priority dates become current again. Or they can sit down and can say look we have time, let’s go over the case, adjudicate all the details, decide that the case is completely qualified to receive a green card, so we pre-adjudicate, decide that the person is entitled to get the green card. Make a note on the file. If you need some documents, we send an RFE get the documents so when the priority dates become current again all we have to do is issue the green card. That’s pre-adjudicate.

Question: How soon must I join my future green card employer? 

There is really no rule of thumb. But within a commercially reasonable period of time. Three to four months maybe, after approval of the green card, you should join the future green card employer. In your particular case that appears to be a requirement sometimes it may not be a requirement because of AC21 and remember AC21 portability is available even in future employer green card cases.

Priority Date (PD) is the date when your green card visa numbers are available. It means that you are entitled to get your green card. It doesn’t mean you can get it right away. But it means you are in a stage were you are about to get your green card. So Priority Date is usually the date on which your application was started. In case of family based petitions Priority Date is when I-130 was filed. In the case of Employment based cases it is based upon when PERM was filed. Employment based cases were PERM is not involved, direct I-140 is involved such as National Interest Waivers, EB-1s - Priority Date is the date you file the I-140. Your Priority Date depends upon the date your case was started. That’s one thing you got to worry about.

 When you go to Visas Bulletin which is a monthly publication of the US Department of State it tells you what visa dates are expected to be curbed or in other words where the queue is for the next month. So in December they will issue predictions for January, in January they will issue predictions for February, then on top of that you have to worry about processing times. Sometimes for e.g.: in US Citizen’s cases there is no Priority Date back up, dates are immediately current for e.g.: spouse of a US Citizen, parent of a US Citizen, minor unmarried child of a US Citizen, there are no Priority Date   issues here. In these cases, you have to worry only about the processing times. So when you file the form the form takes set amount of time to process. Now a new concept has been started a couple of months ago, if you go to the USCIS website it tells you if you are in the United States this is the date when you can file your last step of the green card process. If you are outside USA this is the date, you can expect to receive further paper work from the consulate. It doesn’t mean you are going to get your green card right away but you are eligible or close to getting it.

Here is another variable. How much time is it taking at that consulate to schedule interviews. Some consulates are heavily overworked. Some consulates are relatively less worked. So that’s the fourth variable. First variable was Priority Date, second variable is processing times, third variable is final action dates which is also the part of Visa Bulletin a slightly different table, and the fourth is the local processing times.

Question: How can I calculate my sister's possible visa interview? I am confused with these changes on final action date etc. Her PD is 1 Feb, 2011 visa category F2B. She has already submitted dox to NVC. When she was waiting for the visa date she turned 21 and moved to f2b cat.1. When do you think it will be? Which table to consider? At the Visa bulletin one, I mean. 

First of all, if her Priority Date is current normally within a few months, probably less than six months. At the Visa Bulletin the final action table tells you approximately when she can expect her final documents.

Question: Once the other parent becomes citizen in USA would it be helpful to submit another petition for her? Would you advise it to be in the safe side? 

You can. You can file multiple cases for the same individual. That is not a problem. As long as you see some gain in it depending upon the country she was born in, in filing through two separate categories you can certainly do that.

Question: My wife is on H-1B and became aware of her project end dates. We are currently evaluating the options of H-4 EAD. Can we file H-1-H-4 transfer and EAD concurrently?

Let's take the situation where you are filing H-1, for you yes I do not see any problem with it. If you are doing H-1 transfer, you can do her H-4 and EAD concurrently. However, if you are trying to do H-1 transfer for her along with H-4 EAD simultaneously, that can become little complicated. But I don't know what exactly you are trying to accomplish. If you are trying to cover both basis I would recommend to do an H-1 premium processing and then file an H-4. Let one status accomplish before you apply for the next status. If you want to do both simultaneously make H-1 premium.

Question: Do companies hire full time on H-4 EAD?

That depends upon the company. EAD holders has all rights almost equivalent to the Green card holder. So if the employer knows what this EAD is or they have good legal advice they should be able to hire full time on H-4 EAD.

Question: What are the benefits of H-4 EAD over H-1?

Some really big benefits. One benefit is there is no requirement of a particular salary. Number two is there is no requirement of specific job location. An H-4 EAD holder can work 3 hours in one job, 5 hours in another job location or 10 hours and then keep switching from job to job if they want. There is no limit on how they work. They can even start their own business. So those are some of the big advantages of H-4 EAD.

The biggest disadvantage is because the status depends upon the H-1 holder, something goes wrong with the H-1 status; they get laid off or they fall out of the status then the H-4 status is also in doubt.

Question: Do I recommend to convert to H-4 EAD?

That depends upon the case.

Question: What are the risks associated with the conversion?

From H-1 to H-4 not much risk that I can see.

Question: What is the typical timeline?

That is very tricky. We had a tweet exchange couple of weeks ago with the community member who said that; his wife's EAD got approved in couple of weeks. My office was reporting that H-4 EAD combine can take months. A few months ago they were only taking a couple of months. So few months is not an extraordinary for H-4 EAD combo. If you are doing EAD alone, already your wife is on H-4, it might be quick. Technically there is 90 days’ deadline on the government to decide these cases of EADs. How far they follow it I don't know.

FAQ Transcript

Answer 1. People typically file a FOIA request. File the Form G-639 (Form G-639 - USCIS).  Often you get copies of all kinds of documents. Government gives you copies of documents they have on you. It is not consistent but people have got copies of their 140 approval notices, copies of their H-1 approval notices, the entire perm package. So it is worth filing a FOIA and it doesn’t cost you anything. It can take a little bit of time a couple of months maybe three months but do file it if you don’t have documentation. You can port the Priority Date with your alien number itself and receipt number as well. It should not need a I-140 approval notice. Remember the government has that information already. They don’t specifically need it from you. 

Answer 2. By all means file the form. File G-639 and not I-824. File G-639 and let’s see what they give you.

If you get laid off on H-1B there is no grace period. You get laid off today tomorrow you are out of status.

Answer 1.  Not even one day. However when you are getting paid can you not make the argument that since you are getting paid you are still maintaining status. That’s a slightly unpredictable argument. It can cut both ways. An example: I did a consultation on garden leave. Garden leave is very common in the financial industry. The employer lets you resign or if they lay you off they will pay you for the couple of months but they don’t want you to join another employer. The idea is you should not be able to take their information which is current and apply to a competitor. So in that case those pay checks are strongly set to keep you in status because it is full salary and they are maintaining control over you and they are not letting you do what you please . And that’s the assumption.

However severance pay… government has at one point said that they don’t consider severance pay to maintenance of status because severance pay seems to be a part of an arrangement were this is not salary you are basically just getting paid sought of a bonus to part company and I have doubts about that . I do not believe that to be a very good legal opinion from the government.  I feel as long as my salary amount is getting paid, my deductions are being made, it is does not matter if I have a job or not. So you can certainly argue that. Severance pay doubtful, something like garden leave or regular leave coming out your way is probably ok to maintain status.

Answer 2.  Not really. Understand the difference between out of status and unlawful presence. These are two different concepts. If you are on H-1 and you get laid off you are out of status the next day. But you are not unlawfully present until your H-1 is revoked or until your 1-94 expires. For sure unlawful presence begins when 1-94 expires. So unlawful presence and out of status are two different things. You are out of status the following day but you may not be unlawfully present until you’re I-94 expires or revocation of the H-1 occurs. Consequences of being out of status and unlawful presence are quite different. You are out of status that is no bar from getting another H-1B visa, another H-4, L-1, L-2 maybe a problem for F-1 or B-1 visas that have rather weak basis but for H-,4 H-1, L-1, L-2  or even O-1 or E-3 this is not a problem. On the other hand if you are unlawfully present for 180 days you are barred from green card or work visa for three years to ten years if you are unlawfully present for one year. So you can’t come back without a waiver and waivers are limited.

Answer 3.  No because you don’t have a job. If you use the same visa to come back in, that could be fraud.

Answer 4.  The answer is yes and why not. Government has never made a formal announcement that they will not accept severance as indicative of violation of status. So definitely use them.

Answer 5.  That’s between you and your new employer. Immigration law does not require you to inform your new employer about termination by the old employer. 

Answer 6. It can be many months but revocation should be retroactive so if your employer sent a revocation request which reaches USCIS today even if they act on it three months down the line they will back date it to today. Revocation is effective on the date revocation request is received.

Answer 7.  It is up to USCIS, they might allow you status if the facts of your case is such that they require some sympathetic consideration but normally if you are out of status even one day government is  well within its right to refuse to issue you status within the country. In these cases I always advice people to file premium processing soon so you know rather quickly were you stand.

Answer 8.  B-2 application to maintain status is acceptable sometimes and also objectionable by the government. You can try, you can tell them that you were laid off unexpectedly and you have enough money to support yourself and you will not work without authorization, and that as soon as you find another employer you will immediately apply for an H-1. When all these things are said and done I think you can make a case for a B-2.

Sometimes government has come back and said we cannot give you a B-2 but as long as you get it filed before your current H-1 expires at least you have the right to stay in the US.  You can argue in what is called authorized period of stay. But the problem is this. Something you need to be aware of. Let’s say your status is expired you have filed for B-2 and it is pending now you found a job remember an H-1 transfer within US will be approved only (most cases) if the pending B-2 has been approved in your favor by the time USCIS decides the H-1 transfer. If the case is still pending they will not give you status within USA, they will ask you to go for visa stamping. That is not a problem. You can do that but be mindful of that. If the B-2 is still pending or the B-2 is denied you will have to leave USA. The only time you get H-1B within USA is if by the time they decide your second H-1and your B-2 is already approved in your favor. 

You will be cap exempt. That is not a problem because cap just says if you have been approved anytime in the last six years you are not subject to the quota.

Answer 9.  Why not. On the one hand we are arguing that’s keeping you in status. On the other government could take the position that means you are violating status and I would say “no” because that is payment for work already done. They are giving me severance not because I am working for them; it’s because I already worked for them and this is either a payment for work already done or part of the arrangement while I was working.  In order for employment to be unauthorized there must be a payment or remuneration as well as work.  If there is payment without work or work without payment I think that is a good argument that’s not an unauthorized employment.

Answer 11.  There is no consistency.  I have seen them ignore not even one day they will come back and say no you were out of status for one day, in some situations they have done  for two or three months. Most of the times they are not tolerant of this issue at all. 

Answer 12. I think B-2is a good idea as long as you understand the implications of a B-2.

FAQ Transcript:

This is a recurring issue, so first of all I want to address the problem and the possible solutions or the lack of solutions. Often times we have a case, we have a case working on right now actually. This lady entered the US on H-4 visa which was good for let’s say till 2017 but her passport was expiring in 2016 or 2015 She comes in and Customs and Border Protection gives her  I-94 only till the date of her passport approval. And sometimes they do that; they will give it to the extent of visa approval, which is incorrect. Your visa could be expiring earlier than your approval. They should still give you the I-94 all the way to your approval not till your visa. In this case they gave it  only till 2015 and she is been here over a year now in unlawful presence not realizing that she has been given less stay than 2017.

So, this is a very complicated issue or problematic issue. They will correct the mistakes they have made.  If they have made a mistake giving you a wrong date or giving you the date till visa not the approval date, you can actually go back to the CBP at the airport or any of their offices or nearby posts. They have lists of them at www.cbp.gov website and you can ask your I-94 to be corrected.

But there are certain things they don't consider them as errors, such as approval till the passport expiration that cannot be corrected. Then the question is what do you do then?

You have two choices; either you can do the extension of status or current status by filing the form I- 539 or I-129, if you are H-1, L-1 holder. For H-1, L-1 they do it all over again as new case. For H-4 it’s less complicated or simple or you can step outside USA, showing your visa and comeback  and receive your I-94 approval. But if your I-94 is already expired, you must speak with your lawyer before you leave. You could very well subject to the bar which comes from the unlawfully present.

So, in this case what happened is the person who has the above question traveled to India while change of status for H-1 to H-4 was pending.

Now USCIS should have declined change of status because they left US, came back received I-94 good till December 2016. The visa expiration date is November 2016, which is what I gave at the airport he says. 

What action would I required to correct I-94 expiration date?

Look you can go back to the CBP, make your case that you have made an error, I don’t see the error. If anything they have given you is more time not less and because you traveled abroad while your change of status was pending , that approval is really not  worth anything. That’s the mistaken approval.

I am filing for a I-485 adjustment as a spouse of EB3, The forms require to put the status expiry date. Is it OK to use the more conservative Nov 25 2016 date even though I-539 has been erroneously approved till July 4 2018?

I would use the date which they have given you in I - 94 and I would attach an explanation saying that this date maybe incorrect but you don't know. According to your calculation it should have been November 2016.

I always like to make full disclosure to the government, so that they don't come back and create a problem with the discrepancy. 

It is perfectly legal for an employer to process the green card for you as long as they have the good faith intention and you have the good faith intention of joining them. However once I-140 is approved and I-485 through a future employer has been pending 180 days you’re not required to join them. You could join anyone with same or similar job anywhere in the United States. So AC21 protects not only jobs you already have in hand it also protects future jobs. As long as the intention is honest basically that is based upon your statements and that’s all that matters.

Now you are protected by AC21 job portability or green card portability you can take any job anywhere with any employer as long as it is similar to the job described by your employer B when they file your green card.

Question: During I-1485 adjudication if I get EVL RFE and I decide to respond to it using another job offer from employer C, then - How do I prove that I certainly had intention to join employer B at the time of filing I-140 and I-1485?

How to prove that my employer B also had intentions to hire me on a permanent Job offer at the time of filing I-140 and I-485? If I cannot join them during I-485 adjudication.........can I use another job.

And the answer is - Yes, you can and you don’t have to prove that this offer was extended prior to I-485 adjudication. That too can be a future job offer and the joining date does not really have to be specified all that needs to be specified is that is it is their intention to offer you the job and accommodate you either before or promptly after the green  card is approved.

So you have all the options open if you want to respond using a job offer from the future employer (employer B/employer A) all of them are open to you and ability to pay RFE is usually only relevant to the employer who filed your green card. So if I use AC21 and go from employer X to employer Y USCIS is not going to question employer Y’s ability to pay. But if you stay with employer X they can question the ability to pay all the way till you actually get the green card.

FAQ Transcript:

The rule is once PERM is approved the I-140 must be filed within 180 days. If you do not then your PERM is extinguished and you will have to start all over again. However if you file I-140 within 180 days and then for some reason you have to file again, then 180 day limit does not apply. Let me give you an example: Let us say you’re I-140 was denied, you filed it within 180 days and you forgot to submit an education evaluation or because of some technical reason or a serious reason such as the inability of the employer to prove that they have the capacity to pay your wages. You can file an I-140 three years down the line. You are no longer confined to the 180 day deadline because when the first time around when you filed you were confined to the 180 days deadline.

Now the answer to question 1: Yes.

The answer to question 2: No limit that I know of as long as it is done in good faith. 

The answer to question 3: This is a tricky question. USCIS has said if you still have the original of the PERM and it has not been archived then they will take the premium processing only if they have the originals in their possession. If it was never submitted or if the case has been shelved they will not take premium processing.

Note: Where transcribed from audio/video, this is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

A1. So far it appears to me and again we don’t have the details yet. The very least you will need is proof of marriage and birth certificate. I don’t think that is the normal requirement but I believe proof of relationship should be acquired and kept. Then the question what if the names on the birth certificate and passport are different.... we still don’t know lot about these issues. I would say an affidavit explaining the discrepancy and probably making efforts to remove the discrepancy whether you want to have the passport issued under the correct name or whether you want to have a Indian court give a declaratory judgment of some kind that the name X and Y are the same person. Something like that would be a good idea. But it is not going to stop you H-4 EAD application at least in my mind. I think even education certificates are irrelevant because the H-4 EAD is not given based upon what degrees you have, it is given based upon your relationship with the H-1  holder who is at a certain level of maturity in the green card process. I am not worried about the laminated original document. That doesn’t bother me. 

A2. First of all USCIS just roughly follows the first in, first out rule. They are not always bound by that rule because there are so many variations within the processing times if it is given to a particular officer, which depends on what is their case load is and what if they have to take a couple of days off. It’s not always predictable that you will always be first in and first out.  

A3. Under the regulations USCIS should adjudicate EADs within 90 days. But in case you don’t know they are finding it very difficult to keep to that time. I will be surprised if they are able to keep to the 90 days process, but if it is merely administrative process and there is not a whole lot of investigation involved then I don’t see why not but I really don’t know. 

A4. The government has said as long as you have one I-140 that remains unrevoked they will give us the H-4 EAD. But if the I-140 is revoked then H-4 EAD will not be given.