AC21 AOS Portability

AC21 is the name given to a law that provides for several matters including the ability to change jobs while an employment-based green card is pending (I-485 AC21 portability) and to start working for an H-1B employer as soon as transfer petition is filed with the USCIS.

Priority date retrogression -- consequences and concerns

Question details

The current prediction that the priority dates for employment based green card applications are likely to retrogress again has brought a lot of speculation and questions from our clients and our community. Let me clarify some of the questions and concerns.

Q 1. What happens if my priority date (“PD”) retrogresses while my I-485 is still pending?

Q 2. Can we expedite the adjudication of our pending I-485 (or any application, for that matter)?

A 1. There are two possibilities. First, the case is not yet ripe for adjudication (for instance, it has not been assigned to an officer or the security clearances are not yet submitted or obtained), USCIS can shelf the case and not process it any longer untile the PD becomes current again. Second, USCIS can “preadjudicate” that case. That means the case is adjudicated and then shelved for PD to become current again. I do not believe there exists a mechanism currently to determine what USCIS will do with an individual case.

Spouse of an O-1 - next step to Green Card

Question details

I am the spouse of an O-1 visa holder and we live in the US (so I am on an O-3). His company is putting together the application for his green card, but do they need to do a separate one for me too? Or do I get one automatically if he gets one? Or do I have to wait until he gets one and then he applies for one for me? And what about our children - too young to work yet, but want to make sure they are ok too.

The way it works is that the company can file everyone's AOS (Form I-485) together OR they can first get your husband's I-140 approval and leave you to file the last step (AOS) for the family.

Questions regarding I-485

Question details

I am on H1-B visa and my EB-2 Priority Date is May 15, 2010. Please see below questions regarding I-485.

Question # 1:- Typically, how long would it take to receive Advance Parole and EAD after filing I-485?

Question # 2:- I entered USA on F1-Visa in year 2000, and then changed my status to H1-B visa within USA in year 2004. I never left USA since year 2000. My passport does not have H1-B visa stamp. In order to file I-485, is it required to have H1-B visa stamp in my passport?

Question # 3:-After filing I-485 and before receving A.P., if I travel to my home country for H1-B visa stamping, is it possible that my company can mail A.P. documents to my home country so that I could enter USA using my A.P. in case H1-B visa in my home country is denied?

Question # 4:- I came to know that it is required for an alien to be present in USA at the time of I-485 filing. Is it also required that an alien must be present in USA until A.P. is approved?

Question # 5:- Does Visa Officer have the ability to cancel A.P., in case H1-B visa is denied in my home country due to 221(g)/missing tax returns/W-2's/Paystubs?

Question # 6:- If my H1-B visa is denied in my home country, and if i enter USA using A.P., then could my spouse enter USA using H-4 visa using my valid I-797 approval notice even though I do not have H1-B visa stamp in my passport? If I enter USA using A.P., what are the options for my spouse?

Question # 7:- At what point of time during GC process, do I need to add my spouse? Should it be before filing of I-485 or before Visa Number is available?

Question # 8:- After filing my I-485, and if my spouse is in USA on H-4, will I be able to add my spouse to my I-485 application? By the time, I want to add my spouse to I-485 application, if Visa Number is available and if AOS/I-485 is approved, then would I still be able to add my spouse if spouse is in USA and also outside USA?

Answer 1: EAD is usally processed within 90 days and AP within 3-6 months. You can check I-131 processing times from links on this page: http://www.immigration.com/processin...-status-checks

Answer 2: A visa stamp is NOT required. Proper status only is needed.

Guestbook Entry for Dilip Jeyram, United States

Name
Dilip Jeyram
Country
United States
State
VA
Comment

I have engaged Rajiv's office for over 10 years now for many different reasons. I've also been recommending Rajiv's law offices to my aquaintences & friends for over 10 years now. I have very close examples of people who lost 3-5 years going to some other lawyer & later, at  my advise, going through Rajiv's office, who somehow 'fixed everythin' ???? Rajiv once told me ... ' why do you want to engage my office? this is so simple, you can do it yourself and save some money..."  if you expect more from a lawyer... you are crazy!!!!! For Rajiv, its not about the money... he REALLY wants to 'do the right thing'. Rajiv provided me guidance for a new case - at no cost just because I was a old client -  & literally advised me I could save money by doing the work myself - it was very simple. I was infact, ready to pay him or some other lawyer 100s of $s because this was a inquiry near & dear to me. There is no better example of honesty & forthrighness ( i've dealt with many lawyers in my lifetime & if you have a better example, I'd certainly like to hear it) .  I'd ( & have already ) recommend Rajiv for his unparalleled knowledge & honesty in a instant & have also, personally, gone back to him time and again - H1B , family visas, family GC, company visas etc etc etc - again & again......its a no-brainer for me... & yeah.. I'd put my money where my mouth is.... --DJ

Guestbook Entry for A Singh, United States

Name
A Singh
Country
United States
State
OK
Comment

I had an accident and am on disability while my green card adjustment of status application ( form I-485 ) has been pending for over 4 years. My I-140 had been approved about 5 years back but my case has been caught up in the visa backlogs at USCIS and Department of State. I wanted to know if there was any provision for help in the immigration laws, in case I am sent for long term disability or my employment is terminated before I receive my green card. I learnt that employment and disability are subjects to be discussed with a benefits or employment attorney. The only immigration benefits are via AC 21 or via a private bill. Also, that one should not loose the advance parole anytime while the AOS is pending. I want to thank Mr. Rajiv Khanna for his generosity with time and expert guidance. Over the phone I found him to have a very pleasant personality. he had me feel comfortable and didnt seem money minded at all.

AOS interview next week, mother in India on AP

Question details

I am a US citizen, had applied for my parents GC in October 2009. Mom underwent fingerprinting three times here, but did not get her AOS done in time. End of last year my father (who got his EAD and AOS smoothly) had emergency heary bypass here, and then they had to leave back for India for more tests. Mom left on AP. Subsequently I wrote a letter to NBC, MO to ask them to expedite my mothers case. Yesterday I received a letter stating that she has go to Philadelphia USCIS office next week for "Completion of application to register for Perm residence." Mom is in India now.

You need to contact USCIS customer service for guidance. Definitely put something down in writing that you are requesting a rescheduling. Maybe asking your Congressman's assistance is the best way to go for rescheduling.

Guestbook Entry for Vipul Gajera, United States

Name
Vipul Gajera
Country
United States
State
New Jersey
Comment

I had recently requested a telephone conference with Mr. Rajiv Khanna regarding my pending 485 case. I am happy to report that I had a very pleasant experience and was very satisfied with the way they handled my request right from the secretary, Ms. Leslie, who took my questions and made the conference appt. to Mr. Khanna who answered my questions. He was punctual, professional and took his time to answer my questions. During the first telephone conference, he had a very busy morning and there were a number of callers waiting in line. After my call, I realized I had a couple more questions, and Mr Khanna asked me to make another appt. which was promptly given to me for the next day. I am also very thankful to Mr. Khanna for not charging me any initial consultation fees based on my current situation. I have no hesitation in recommending Mr. Rajiv Khanna and his office for your legal/immigration needs.

AOS applicants applying for H-1 visa

Question details

My spouse and me are currently working on H1 and we do have our EAD and AP even though we are not using it.
We are planning on a trip to India in the month of December. Both of our H1 visa's on passport have expired. We plan on using AP when coming back to US to avoid the hassle of getting our passports stamped.

We plan on remaining on H1 even though we use AP to get back. We do plan on renewing our AP and EAD when they expire. What I want to know is... is there any advantage of having visa stamped in your passport as to using AP if you plan on remaining on H1? One that I know is cities like London require you to get a transit visa if your visa has expired when traveling to India.

We would highly recommend not applying for an H visa if it can be avoided. In the past few weeks, I have provided consultations to various employers on H-1 visa refusals. The refusals were ridiculous, illegal and would be overturned if there were an adequate mechanism for reversal. So, I see no point in applying for an H-1 visa. Even if you enter on AP and continue working for the original H-1 employer, you ARE considered to still be on H-1. All other matters are more or less ancillary.

Guestbook Entry for Jigar Chudgar, United States

Name
Jigar Chudgar
Country
United States
State
California
Comment

Law offices of Rajiv S. Khanna has provided great service in getting my employment based I- 1485 approved. I contacted Rajiv's office little more than a year ago for phone consulation in changing employer using AC-21. Upon his advice, i continued my AC21 process. Rajiv's advice is always very neutral, practicle and straigh forward. Later on, my case was sent to local office for interview. He helped me prepare documents and answers for the interview process. He even offered his personal cell phone number in case I need to contact him during the interview. My case was approved in almost a month after the interview. My main contact in Rajiv's office was Mark Riddick. He was extermely patient, supportive and very quick in responding my numerous questions. He helped me prepare every single detail for the interview. Without that type of help and support, the interview experience would have been very difficult. Matthew, Heather, Lesli, Art also helped me a lot. Overall, I had a very professional and satisfactory experience working with Rajiv Khanna and his team. Thank you very much.