applying for I485 while a B2 AOS is pending

[tracker14]

I have a question about applying for I485 while a B2 AOS is pending.

Here is my situation: I am on 8th year H1B (non-profit), because of my approved I 140 on EB2-NIW. My employer has given me 4 weeks to look for a job. As I am looking for one, I filed EB1A application by premium processing 5 days ago. I am not completely sure about my EB1 chances.

My question is if my I140 comes back with an RFE, I may not have sufficient time to reply back and get a decision. So, can I apply for a B2 adjustment of status (I539) just before the end of the 4 weeks (justifying that I would like to meet my friends/family, before I leave the country)

 

then,once the I140 is approved can i apply for a I485 while the B2 AOS is still pending (2-3 months)?

Thank you and I look forward for your opinion/advice.

[Belle]

B1 process is called COS, not AOS. Term AOS is used for I-485 only.

 

The problem with B status is that you plan to obtain it so close to the I-140/I-485 filing. It's a question of intent - when filing COS to B2 you should not have immigrant intent.. and your I-485 and even I-140 (self filed) shows immigrant intent. In fact, even your old EB2 petition shows immigrant intent, but you can argue that you no longer have immigrant intent because the intent is tied to your date of original I-140 filing. Obviously, your non-immigrant intent can be very much questioned if you sandwich it between two immigrant filings.

 

So, here my recommendation - don't file B2 COS. Go out of status on your H1. You can be out of status for up to 180 days and still file I-485 under 245k exemption. That's your best bet.

 

P.S. Before taking some stranger's advice on an anonymous board to intentionally go out of status, you should consult a qualified lawyer.