RFE from USCIS about changing the Primary Application

[kganta]

Hi, I need help with one of my friends case:

 

Her case was filed in EB3 and 140 approved with Priority Date April 14, 2006. She got EAD in 2007 and been working on EAD since July 2008. She recently changed job in October 2012.

 

Her Husband case was filed in EB3 and 140 approved with Priority Date August 9, 2010. Again he filed the Green Card in EB2 and his 140 was approved in Dec 2012 with same company.

Now he changed job on EAD (as a derivative) in June 2013 to join a new company.

He is no longer working with the company who filed his GreenCard.

 

Now they got letters from USCIS asking if they want to change the Husband case as Primary and wife case as secondary.

 

Questions are

1. Since husband changed the job and is on EAD from his wife case, is it OK to ask them to change the his case as primary?

2. will there be any problem extending the existing EAD cards which we got using Exiting 485 application?

 

 

Any help is really appreciated.

 

[pontevecchio]

It only makes sense if they are not from India or China.

[kganta]

Yes they are from India.

Any answer is apprecited.

Thankyou.

[Belle]

Talk to a good lawyer. The sticky point is him being a derivative when he changed jobs. This may make him ineligible for AC21, in which case, he is assumed to have a job offer from his original employer. Does the RFE say anything about such letter? I would get lawyer advice, possibly, two lawyers.

[kganta]

Thank you so much for the reply. I will take murthys appointment.

The letter doesnot say anything about job offer.

All it says is 'do you want to make the husband as primary and wife as derivative'

thats all.

[cap-gap]

It only makes sense if they are not from India or China.

 

OP, this above statement is an excellent observation..

 

if you are from India, your PD of Aug 2010 was never current and does not make sense in asking you to be the primary..

[cap-gap]

p.s: unless they are gonna make another silly move to push the PD to 2010 in the next bulletine..which might have made them to dig up ur file..that has been the trend this year..

 

but again, like Belle said it seems very unlikely to remain qualified for that Eb2 application..

[kganta]

I talked to 2 different attorneys and 2 gave 2 diff answers.

One lawer asked me to say yes for the offer.

But another attorney said no as my husband changed the job and not with the greencard filed employer.

Any thoughts?

[Belle]

I talked to 2 different attorneys and 2 gave 2 diff answers.

One lawer asked me to say yes for the offer.

But another attorney said no as my husband changed the job and not with the greencard filed employer.

Any thoughts?

 

Talk to third one. Ask to explain the reasonsing, and what they think about AC21 eligibility. The good sign would be if they quote the law (I don't think the law specifies the petitioner should be primary, but then all of the USCIS communications assumes it).

[Belle]

Any opportunity for the original primary to get into EB2? That would be the best option for all.

[kganta]

Thank you all for your kind replies.

I am the primary applicant and recently changed the job so i am still in process of finding if they can do the greencard in EB2. If they do, its great.

So we decided to send uscis a letter saying :

Dont make any changes.keep the applications aa it is.

[Belle]

Thank you all for your kind replies.

I am the primary applicant and recently changed the job so i am still in process of finding if they can do the greencard in EB2. If they do, its great.

So we decided to send uscis a letter saying :

Dont make any changes.keep the applications aa it is.

 

OK. That's a fair response.

[kganta]

Hello

Thank you so much for all the replies.

My attorney is insisting to say YES.

And he is saying if we say yes we will get green card in 4 weeks. I am going to call him now

but before i want to post the update.

[Belle]

Hello

Thank you so much for all the replies.

My attorney is insisting to say YES.

And he is saying if we say yes we will get green card in 4 weeks. I am going to call him now

but before i want to post the update.

In that case, good luck to you. It is possible that the USCIS will dig into your case and say that you are ineligible to be the primary, after all. However, the downside is minimal. If you don't get to be the primiary, it will revert to where it is today.