The Proposed I-140 EAD Rule - Continually Updated
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Nufield Memo-Are you deportable even if in valid AOS/I-485 pending?
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I have a question on the new very scary and confusing interoffice memo (May 6, 2009) that the acting associate director of USCIS issued regarding unlawful presence. I am currently on EAD/AP since the expiration of my 6 years of H1-b visa on september 3, 2008 with my I-140 approved and my I-485 (PD-october 2, 2004, EB2) pending. According to the example 2 (page 10) of this memo-, anybody with an expired non-immigrant visa is subject to deportation even though his I-485 was filed properly when that person was in proper non-immigrant status and the petition is still pending. My understanding was that once an AOS is filed, I am authorized to stay here and work on EAD and go in and out of USA on AP until that petition is denied. When did this law change?
That example does not make any sense. It appears to be more a clarification of a concept - NOT practice. Do NOT worry. You are fine. If someone has not already done so, I will write USCIS next week after reviewing the entire 51 page memo carefully. Do NOT lose sleep over this.
Marriage to US Citizen with EB AOS is pending
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I am currently on H1B extension (7th year ; with pending I-485 under NIW, and approved Advanced Parole & EAD) dating an American citizen. We want to get married in India. If I were to leave my current job in October 2009, and go to India (for making marriage arrangements), is it advisable to:
1. First get engaged here in the US and file for fiancé Visa while I am in US (and then travel to India) in order to re-enter US on a legal status.
2. Also do we have to get married in US again in order to provide proper legal marriage documentation and to file family based I-485 as spouse.
NIW applicants get their green card based upon an expectation of employment - not employment (unless you are a physician). So, if you have a job offer in your area of expertise, your travel on AP is fairly safe.
A legal marriage in India is fully recognized in USA.
Leave of absence - I-485 pending
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a). I am an associate professor at XXX State University. Beginning August, 2009 (in two weeks time), I am planning on going for a one-year unpaid professional leave of absence. During the leave I will be in India. However I would technically still be employed by my University. Meanwhile, I have an approved I-140 (EB-2) - I-485 pending.
b). What happens if I get my green card while I am on leave (I am going to India)? Can I still receive it legally? If I can legally accept the green card, can I change my address on the USCIS web site and give my relative's address? We currently live in California and our case is is handled by Nebraska Center. Given this scenario, should we give the address of our relatives in California, or is it O.K. to give the address of our relative who lives in New Jersey?
c). At the time I filled the I-485 for myself and my wife, my wife was pregnant and could not get one of the immunizations (I think it was MMR). Now I am afraid that when we are out of the country we might get a medical RFE for my wife. Is it possible for us to get the immunizations done by a USCIS authorized doctor, and send the report to the USCIS in anticipation of the RFE? If yes, then which form should be fill/take to the doctor?
a). The first issue would be whether or not you still have a "permanent job" that would qualify you for a green card. In situations of long vacation, questions could be raised whether or not the green card job is indeed permanent; if so, who will do it in your absence; what is the reason for your leave; are you terminating your relationship with your employer, etc. If you have good answers to all these questions, you are fine.
What is I-485 Pre-adjudicate/Pre-adjudication and How soon must I join my future green card employer
Question details
What is I-485 Pre-adjudicate/Pre-adjudication?
How soon must I join my future green card employer?
Situation -
I have my EB2 India PD as March, 2008. I applied for I-485 in Oct 2014 (Future based GC application). My PD is not current as of yet but I have got an RFE for expired medical form I-693 ONLY in Oct, 2015.
FAQ Transcript
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.