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second bmarriage-based AOS pending; am I eligible for H1B or employment based EB3?

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  • second bmarriage-based AOS pending; am I eligible for H1B or employment based EB3?

    Hi everyone,

    I have been rejected the marriage based petition of alien and, furthermore, the I-485. The denial letter stated I did not meet the balance burden of proof, without implying fraud. I had a lot of documentation with me at the interview, but the officer only asked for specific documentation sauch as joint lease and insurance, which I provided.

    I filed a notice of appeal because, although I had sent the evidence for bona fides before the decision was made by the USCIS district director (please note that the denial came in the mail about 4 weeks after the interview), the decision was clearly made without the consideration of the extensive balance of additional evidence (joint credit cards, photos, dental insurance, etc.). I asso filled a motion to reconsider for the petition of alien and a motion to reconsider for the AOS. They were both filed within a month after the decision to deny. I think the reason I was denied is that we live separately for employment reasons, although I gave tickets that proove I see my wife every 2 weeks. They were also not taken at the interview.

    Since the apeal and motion to reconsider take a long time and I need to continue working, I also filed another AOS package (I-485, I-765, I-130 and I-131). The Advance Parole was approved about a month ago. The EAD application is still pending.

    My questions are:

    Am I eligible for an H1B now? Of course, I know that I could only chage my status from October, because of the cap being reached for H1B. Please note that I have not stopped working since my initial I-485 was denied. I am aware that this myigth be a problem, along with the fact that it took about a month between the I-485 denial and the receipt date for the new I-485. Also, I had not been out of status before I initially applied for AOS.

    Do you think it would be better to ask my employer to file an employment based I-485 along with a EAD application? The date would be current and they would be able to file the I-140, too. I don't want to push that hard and take the risk of not being sponsored at all, unless I know that an EAD based on a EB3 category AOS application will have a better chance to be approved than an H1B. I also have to move fast, because I have already received a letter for an interview for the marriage-based application in 2 months and I wouldn't like to depend on it. Please let me know what I shold do. I would be grateful for any thoughts. Thanks!

    Mostovoi

  • #2
    Hi everyone,

    I have been rejected the marriage based petition of alien and, furthermore, the I-485. The denial letter stated I did not meet the balance burden of proof, without implying fraud. I had a lot of documentation with me at the interview, but the officer only asked for specific documentation sauch as joint lease and insurance, which I provided.

    I filed a notice of appeal because, although I had sent the evidence for bona fides before the decision was made by the USCIS district director (please note that the denial came in the mail about 4 weeks after the interview), the decision was clearly made without the consideration of the extensive balance of additional evidence (joint credit cards, photos, dental insurance, etc.). I asso filled a motion to reconsider for the petition of alien and a motion to reconsider for the AOS. They were both filed within a month after the decision to deny. I think the reason I was denied is that we live separately for employment reasons, although I gave tickets that proove I see my wife every 2 weeks. They were also not taken at the interview.

    Since the apeal and motion to reconsider take a long time and I need to continue working, I also filed another AOS package (I-485, I-765, I-130 and I-131). The Advance Parole was approved about a month ago. The EAD application is still pending.

    My questions are:

    Am I eligible for an H1B now? Of course, I know that I could only chage my status from October, because of the cap being reached for H1B. Please note that I have not stopped working since my initial I-485 was denied. I am aware that this myigth be a problem, along with the fact that it took about a month between the I-485 denial and the receipt date for the new I-485. Also, I had not been out of status before I initially applied for AOS.

    Do you think it would be better to ask my employer to file an employment based I-485 along with a EAD application? The date would be current and they would be able to file the I-140, too. I don't want to push that hard and take the risk of not being sponsored at all, unless I know that an EAD based on a EB3 category AOS application will have a better chance to be approved than an H1B. I also have to move fast, because I have already received a letter for an interview for the marriage-based application in 2 months and I wouldn't like to depend on it. Please let me know what I shold do. I would be grateful for any thoughts. Thanks!

    Mostovoi

    Comment


    • #3
      Do you qualify under the EB3 category? If you have an employer willing to sponsor you, my understanding is that the EB3 requires that after the I140 is approved, you await an immigrant visa number, although I believe you can do that while in the USA. I'm wondering if that is the case, if you'd get employment authorisation any quicker than the marriage petition you have pending.
      The above is simply an opinion. Your mileage may vary. For immigration issues, please consult an immigration attorney.

      Comment


      • #4
        Yes, I have an advance degree and I qualify for EB3. Does a visa number mean alien number? I have and alien number. I understand that one should get an EAD in 2-4 months after I-765 receipt notice date and the I-765 can be filed concurrently with I-485. Am I wrong?

        Also, do I have chances for an H1B since I have an immigrant visa application pending?

        Thanks.

        Comment



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