Can I invoke AC21?

[vmehrotra]

Below is summary of my case:

Wife's EB3: PD Oct 2006

I-485 filed in July 2007 for me and my wife's in EB3

My EB2: PD Feb 2007. I-140 approved in August 2007

I left employer A in Feb 2008

Worked for Employer B from Feb 2008 to June 2009

Received RFE in June 2009 (Replied that I am dependent so no employment letter required)

Working for employer C from Aug 2009 to till date.

Please let me know the following:

1. How to file AC21 in my case?

2. How to change my I-485 to EB2 and again repond to RFE with current employment letter?

[Belle]

You need help of a qualified lawyer. Technically, you are eligible for AC21, but you need to make sure everything is in order and your petition is switched over to your I-140 first.

[my2239]

Several things are not clear from your post

Let me begin with an assumption

1) You filed your 485 as a dependent of your spouse using the EB3 priority date

2) Subsequently an employer agreed to file your individual EB2 based application for which your I 140 was approved

3) You never filed for your 485 based on your Feb 2007 EB2 PD

4) You got a RFE when you were working on the EAd card based on your wifes EB3 GC case

You responded that as you were a beneficiary, you did not need to provide a verification letter

This in my opinion was a mistake on your behalf

The RFE may have been issued by USCIS after recognizing the fact that you and your wifes case may enjoy the EB2 based priority date

Anyway what is over is over, I would suggest that you get a lawyer to clearly explain your case and write a letter to USCIS saying that you intend to use your priority date and approve yours, your wifes pending 485

Alternatively you can simply file a new 485 for you and your wife, and it may be approved based on the EB2 priority date

They may cancel the old 485 applications

Some times this strategy is easier because the case is fresh and all evidence suggests an approval

When communicating on an old case, there is always the risk of gaps in understanding

Please note that USCIS however prefers not to have multiple 485s as it confuses them (apparently it actually works better and does not confuse them in reality)

So you have some risk in the approach but hopefully your lawyer is a professional one and can handle the explanation properly

all the best

[vmehrotra]

Thanks for the reply.

I am hesitent in sending letter to USICIS for changing the case to my I-140. I am currently working on EAD received based on I-485 filed as dependent. If USCIS is confused and reject my I-485 then I will be out of status.

So I am asking my current employer to file H1B transfer. I had H1B till Feb 2010. I am working on EAD after that.

After getting H1B, I will send a letter to USCIS with current employment letter ask them to switch my I-485 to my I-140 in EB2. It is basically changing the response to RFE. I sent previously that I am dependent so no need of emplyment letter and now I send current employment letter.

Let me know Belle and my2239 your suggestion. Definitely I need good lawyer to present this case.

[my2239]

Really I feel you are making too many assumptions and are basing your actions on partly reasonable and partly justified fears

In reality your immigration responses should be based on solid legal footing and not your gut feel

Sorry I sounded harsh but we are only trying to help you

Get a lawyer and discuss all specifics, do as they

suggest

[Belle]

"I am hesitent in sending letter to USICIS for changing the case to my I-140. I am currently working on EAD received based on I-485 filed as dependent. If USCIS is confused and reject my I-485 then I will be out of status."

You ARE out of status. AOS denial would probably make you illegally present. Probably becuase I can't tell for sure since need to know all of the detail. Now, why would be denied (not rejected, since rejected is the opposite of accepted, while denied is the opposite of approved)? Are you getting divorced? Why would switching to your own I-140 lead to denial? Why do you think you would not be able to appeal if denied?

[vmehrotra]

Thanks Belle and My2239.

I am not getting divorced. Denial is just my feeling and reading other's experiences. I can appeal in case it is denied. There is nothing other than I mentioned above my case.

We are now regretting that we did not know that USCIS in 2009 was considering our case as EB2 and we asked them to keep us in EB3.

We send the letter and see the reply. I have already contacted lawyer for this.

[vmehrotra]

Hi Belle and My2239,

I have one more doubt. I was unemployed from July 1, 2009 to August 16, 2009. RFE cane for employment verification in July with deadline of July 29, 2009.

Does this impact my case?

Thanks

[Belle]

I don't know how unemployment impacts your case because I don't know all of the details of your case. For EB AOS you don't need to be employed while petition is pending, but you must have a job offer.

[vmehrotra]

Here are my employment details:

I joined company A in Dec 2005 on H1B. Company A filed my Labour and I-140.

LC - Filed in PERM and approved in Feb 2007

I-140 EB2- Filed in March 2007 and approved in August 2007

I filed my I-485 as dependent of my wife in EB3 in July 2007

Left Employer A in Feb 2008 after I-485 pending for more that 180 days. Joined employer B in Feb 2008 on H1B.

Laid off from employer B in June 2009. Received RFE on I-485 with respond by date July 29, 2009 to send permanent employment letter. At that time I was unemployed. Sent the response to USCIS that I filed as dependent so do not need employment letter.

Joined company C in August 2009. Working with Company C on EAD based on I-485 pending. Company C has not applied my H1B.

Now I am employed with Company C and Company C will keep me after my GC is approved. Company C can give me permanent employment letter.

I am planning to send a different response to RFE already submitted. I want to communicate to USCIS that previous response was send as I did not know that I am eligible for EB2 based on my I-140 approved. Company C will employ me after my GC is approved so please approve in EB2 category based on I-140 approved in EB2 and my permanent employment with Company C. I am eligible for AC21 as I changed employer A after six months of pending I-485.

[vmehrotra]

Please reply to my question above. Should I proceed as per my plan?

[Belle]

There is no need to explain what you knew and what you did not. All you need to do is to tell them you want to be considered in EB2 category. Call 1-800 number and create a service request.

[vmehrotra]

Thanks Belle.

I am going to call to create serive request for my I-485 to be considered in EB2 category. How to proceed with my wife's I-485? Should I add her I-485 in same service request and ask them to consider her I-485 dependent on mine?

[vmehrotra]

Please reply for the wife's GC.

[Belle]

You should not and frankly cannot do anything to your wife's petition. If she wants to be considered a derivative, she should call herself.

[vmehrotra]

I called USCIS and asked them to consider my case in EB2 based my approved I-140.

I revceived a letter stating that "Your case processing will take longer time. We are working actively on your case."

What does this mean?

[vmehrotra]

How long USCIS will take to decide? Please reply.

[Belle]

There is really no way to tell. If not approved in 60 days, create another service request.

[vmehrotra]

I did not get response of my service request and therefore today created a new service request. The request is to consider my I-485 based on my approved I-140 instead of as dependent.

My lawyer is suggesting to send letter to USCIS for changing my dependent I-485 to my approved I-140. Also he is of the opinion to send letter for my wife's case to be considered as dependent on mine. Both letters are to be send at the same time. He thinks if we send her application after my GC approval then her case may be considered in Familiy based.

We are confused now. Should both of us send application together or we just send my application now?

In doing all this, are we sure that my I-485 will not get denied?

[Belle]

"He thinks if we send her application after my GC approval then her case may be considered in Familiy based."

That won't happen for sure. FB requires an I-130, which she does not have.

Moreover, neither of you need to file another I-485. You already have one pending!

You need advice of a better lawyer, period.

[vmehrotra]

Hi Belle and All,

I received following response to my SR to consider my I-140 in processing my I-485 in EB2:

"We are unable to make name, date of birth or A number corrections without proper documentation. However, this issue will be reviewed at processing time and corrections will be made according to documentation submitted with the application. We apologize for the error on your notice and any inconvenience it may have caused you."

Please advice.

Thanks,

[Belle]

Did you provide the receipt number for your I-140 with the request? I think, that's what they mean. I would take an InfoPass and ask if I-485 is connected to your I-140.

[vmehrotra]

Yes, I told the I-140 receipt number. May be they want AC21 letter as there was RFE in 2009 and I responded at that time that I am dependent.

[vmehrotra]

Hi Belle,

Finally we have send AC21 and request to interfile. Do you think that this will help? Anything else we can do?

Thanks,

[Belle]

I would wait 60 days and see what happens.