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To Mohan: Adjusting status by employment while LULC case is pending

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  • To Mohan: Adjusting status by employment while LULC case is pending

    Hi Mohan: My Lulac case is pending & every year I am getting my EAD renewed(Since 1991). I got approved for my front desking and applied for Adjust my status last year with not result yet. In the mean time, my employer got my 140 approved and I applied for new EAD and I-485 application along with my wife on april of this year. Me and my wife got the EAD and advance parole for travel through my employment. I have a one year son born here in the USA last year. My question: should I remove my LULAC case and wait for the I-485 gets approved through my employment? Or let both of those two cases continue?

    Next queston: My wife came 2000 uninspected. WE got married over the phone 1998 and has a valid marrage certificate from my country and got married again here in the usa on January of this year and submitted both marriage certificate with our application/ our recipt date is april of this year. In addition, an employer submitted for labor certification application for my wife on april of last year and my wife has a returned recipt from the DOL but no copies of the application that was file by the employer. Does my wife fall in 245i under my application? Do I need the copy of the labor certification applicaton from the employer or the returened recipt should be enough in case there is an interview with the INS. Please advise- Thanks a lot.

  • #2
    Hi Mohan: My Lulac case is pending & every year I am getting my EAD renewed(Since 1991). I got approved for my front desking and applied for Adjust my status last year with not result yet. In the mean time, my employer got my 140 approved and I applied for new EAD and I-485 application along with my wife on april of this year. Me and my wife got the EAD and advance parole for travel through my employment. I have a one year son born here in the USA last year. My question: should I remove my LULAC case and wait for the I-485 gets approved through my employment? Or let both of those two cases continue?

    Next queston: My wife came 2000 uninspected. WE got married over the phone 1998 and has a valid marrage certificate from my country and got married again here in the usa on January of this year and submitted both marriage certificate with our application/ our recipt date is april of this year. In addition, an employer submitted for labor certification application for my wife on april of last year and my wife has a returned recipt from the DOL but no copies of the application that was file by the employer. Does my wife fall in 245i under my application? Do I need the copy of the labor certification applicaton from the employer or the returened recipt should be enough in case there is an interview with the INS. Please advise- Thanks a lot.

    Comment


    • #3
      Your Lulac case is pending, And still have to go far. Interview, fingerprintcheck etc etc. your H1B is also in the same position, Laborcertification and then AOS etc etc.. Long way to go. You have Ap for travelling but IF you travel you might not come back.(advance parole is only good to travel id you don't have deportation or inadmisablity bar against you, Carefull for that) .
      You claim your wife for H4. Thatsd why she will have H4 status, but she won,t be adjusted because she entered uninspected.She may have to take a waiver which is very hard because KId(USC is just one year old.), and you don,t have status yet.

      I think leave the both case as it is, You better talk to a lawyer.
      Your wife came in 2000 ,she was physically present on the date (245i requirement) If your wife have applied for 245i option then she is eligible, but under your dependent she is not.
      I guess your wife's application was not submitted in the time period required by 245i.( she was eligible with the proof of physically presence.) she can check her status of application with DOL with the receipt number. but if she was granted H1b , then she has to leave to stamp it. which makes her under bar because she was here illigally. Visa will not be stamped.
      read this link for your wife eligblity under 245i.



      http://www.ins.gov/graphics/howdoi/hdi245i.htm

      Comment


      • #4
        Hi Mohan: I thank you very much for your prompt reply. An employer submited for labor cetification last year for my wife before April 30th which was the last date to submit under 245i and I apply for her through my employment thgis year. Isn't she grandfathered by the labor certification application and I sponsor her through my employment application as my spouse?

        -Thank you very much.

        Comment


        • #5
          Hi Mohan: I just want to clearify that I came here as an F1 status 1996/applied for LULAC and my LC and 140 was approved got employment authorization card and advance parol to travel for Me and for my wife this year.

          -You are very kind
          -Thanks

          Comment


          • #6
            Read this and letme know if she grandfathered...


            In 1994, Congress enacted INA Section 245(i), permitting certain aliens who were otherwise ineligible for adjustment to pay a penalty fee for the convenience of adjusting status without leaving the US. Prior to enactment of the LIFE Act Amendments, the window for preserving adjustment eligibility under 245(i) closed on January 14, 1998, after which only "grandfathered" aliens (beneficiaries4 of labor certifications or immigrant visa petitions filed5 on or before that date) were eligible to adjust status under Section 245(i).

            Section 245(i) grandfathers aliens themselves as well as the applications or petitions filed for them. That is, the basis of a grandfathered alien's eventual adjustment is not restricted to the application or petition filed to preserve adjustment eligibility. The grandfathered alien's application for adjustment of status may be based on any adjustment provision available to the alien at the time of adjustment.6

            More details:
            All qualifying submissions were required to be both properly filed and approvable at the time of filing.
            Example: A qualifying Form ETA-750 filed on or before January 14, 1998 preserved the beneficiary's eligibility to adjust status after that date. However, the filed ETA-750 did/does not commit that alien to adjustment on the basis of an employment-based petition. If, after January 14, 1998, the alien was named as beneficiary in a family-based petition or won an immigrant visa in the diversity lottery, (s)he was/is permitted to adjust status on the new basis (note that the an immigrant visa won in the diversity lottery will not grandfather an alien, but may be used as a basis of adjustment by an alien who is already grandfathered under Section 245(i).

            More detail:see
            http://www.ins.gov/graphics/services...m#anchor157875

            Comment


            • #7
              Thanks Mohan: This is What I got from the link you provided regarding dependents of an principal application for 245i with lc/140 for AOS. Since my wife Came USA on June 2000 and I have proof (1.e. air line ticket to other state on the october 2000) That's means she should be able to adjust her status as my spouse and she already been approve for EAD and AP. -Thanks your your kindness.



              Impact on dependents of grandfathered aliens
              A dependent spouse or child who is accompanying or following to join a grandfathered alien is also considered grandfathered by the qualifying petition or labor certification if the relationship existed or comes to exist before the principal alien eventually adjusts status. Only the principal beneficiary of a visa petition or application for labor certification filed after January 14 1998, and on or before April 30, 2001, needs to demonstrate physical presence in the US on December 21, 2000.

              Comment


              • #8
                Thanks Mohan: I am still waiting for your kind relpy.By the way, I do not have any deportation and not sure if I fall into inadmisibility category. Could you please explain in my situation. Since me and my wife got the EAD and Advance parol do you think we might be denied to reenter to USA?.

                -Many thanks

                Comment


                • #9
                  You and your wife got EAD and AP thru your employment. its not based on LULAC ( I,m gussing here) Check the Code written on EAD and let me know. what it says.
                  She came here on 2000 and preserve the benificiary for AOS was on or before Jan14th, 1998, read the previous link.
                  and filing time for 245i is also expired. 245i is not applied to her.
                  She can be your dependent In LULAC.
                  Presently she has H4 status. Check it out.

                  Comment


                  • #10
                    Code written is: As Category C09 and what is H4 status mean? So, is that mean my wife will not be able to AOS her status through my employemnt application and she should not travel outside USA with the current AP?

                    -Thanks

                    Comment


                    • #11
                      Yes, She was entered illigally she will be subject to bar, if she travel, she might not be allowed to enter.
                      H4 means Dependent of Employment based non immigrant.

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