George

I am currently working for company A with an H1-B. Company B is
willing to sponsor a labor certificate for me, but I am not willing to
leave company A at this early stage because my job in company A is
better than what I will have at B, and also company B is not as stable
as A. Chances are that company B will close down before the green card
process is concluded.

Considering the above, I do not want to burn the bridges yet. I prefer
to postpone my move to company B until I actually get the green card
(i.e. upon approval of I-485 or conslusion of Consular Processing).

Here are the questions:

1. When is the "latest" time that I am obliged by law to start working
for company B? Is it upon approval of I-140, filing of I-485, or
approval of I-485/consular processing?

2. Also, if (while the I-485 is pending) I get an EAD (based on the
I-485) and use it to continue to work at company A (without having
started working at B yet) would it be OK?

3. Generally, can an applicant do Consular Processing and his
dependant do AOS?

Thanks
George

Ingo Pakleppa

On Mon, 12 May 2003 16:53:38 -0700, George wrote:

    > I am currently working for company A with an H1-B. Company B is
    > willing to sponsor a labor certificate for me, but I am not willing to
    > leave company A at this early stage because my job in company A is
    > better than what I will have at B, and also company B is not as stable
    > as A. Chances are that company B will close down before the green card
    > process is concluded.
    >
    > Considering the above, I do not want to burn the bridges yet. I prefer
    > to postpone my move to company B until I actually get the green card
    > (i.e. upon approval of I-485 or conslusion of Consular Processing).
    >
    > Here are the questions:
    >
    > 1. When is the "latest" time that I am obliged by law to start working
    > for company B? Is it upon approval of I-140, filing of I-485, or
    > approval of I-485/consular processing?

Actually, never, although this is not a good idea. You must have the
INTENTION to work for company B. In practical terms, you can only show
that if you work for B at some point. Either for a long time before the
I-485 is approved, or about a year after the I-485 is approved.

    > 2. Also, if (while the I-485 is pending) I get an EAD (based on the
    > I-485) and use it to continue to work at company A (without having
    > started working at B yet) would it be OK?

Yes.

    > 3. Generally, can an applicant do Consular Processing and his
    > dependant do AOS?

That is only going to be possible if the dependents have a status in their
own right. If they have an H-4, the problem is that their H-4 ends the
minute you leave the US for your consular interview. By the time you have
your Green Card, they would be out of status and therefore ineligible to
file an I-485.

--
Remember, I am strictly a layperson without any legal training. I encourage
everybody to seek competent legal counsel rather than relying on usenet
newsgroups.

Please visit my new FAQ at http://www.kkeane.com with a list of interesting
immigration links.

My email address in usenet posts is now invalid for spam protection.

Please feel free to enjoy some of my photographs at my new Web site
http://www.ingopakleppa.com ! Comments are welcome.

Henry

    > > 3. Generally, can an applicant do Consular Processing and his
    > > dependant do AOS?
    > That is only going to be possible if the dependents have a status in their
    > own right. If they have an H-4, the problem is that their H-4 ends the
    > minute you leave the US for your consular interview. By the time you have
    > your Green Card, they would be out of status and therefore ineligible to
    > file an I-485.

Hi Ingo,

I may just be thinking out loud, but would the following scenario work?

As the original poster said, he has an H-1 through his employer company A
and (let's assume that) his wife has H-4.

What if:

At the time he files the I-140, he indicates that he wants Consular
Processing but his wife files an I-485 concurrently with the I-140. He then
continues to stay in the U.S. on his H-1 and continues to work for company A
until the time of his consular interview arrives. It is true that his H-1
and his wife's H-4 will end the minute he leaves for consular interview, but
his wife has already filed the I-485 a few months before this happens. The
wife can therefore stay and work in the U.S. based on having an AOS pending
until her AOS is approved. On the other hand, he will conclude his consular
processing and return to the U.S. shortly as a Permanent Resident and start
working for company B.

Any comments?

Basically, would he be able to assign Consular Processing for the I-140 yet
his wife file an I-485 concurrently? Or should she wait until his I-140 is
approved and/or he gets his green card before she can file the I-485 through
follow-to-join or something like that?

Sylvia Ottemoeller

"Henry" wrote in message
news:[email protected]...

    > > > 3. Generally, can an applicant do Consular Processing and his
    > > > dependant do AOS?

    > > That is only going to be possible if the dependents have a status in
their
    > > own right. If they have an H-4, the problem is that their H-4 ends the
    > > minute you leave the US for your consular interview. By the time you
have
    > > your Green Card, they would be out of status and therefore ineligible to
    > > file an I-485.

However, under 245(k), any I-485 applicant in an employment-based case can
have up to 6 months of violation of status forgiven for the purpose of
filing Form I-485.

    > I may just be thinking out loud, but would the following scenario work?
    > As the original poster said, he has an H-1 through his employer company A
    > and (let's assume that) his wife has H-4.
    > What if:
    > At the time he files the I-140, he indicates that he wants Consular
    > Processing but his wife files an I-485 concurrently with the I-140.

The problem with this is that the wife is not eligible to file Form I-485 as
a derivative alien unles the husband, the principal alien, has filed Form
I-485 either prior to her filing or simultaneously with it.

When BCIS receives an I-485 based on an I-140 which originally requested
consular processing, BCIS retrieves the I-140 petition from NVC, stops the
consular process, and proceeds with the I-485. BCIS does not want both
processes, CP and AOS, to be going on at the same time.

He then
    > continues to stay in the U.S. on his H-1 and continues to work for company
A
    > until the time of his consular interview arrives. It is true that his H-1
    > and his wife's H-4 will end the minute he leaves for consular interview,
but
    > his wife has already filed the I-485 a few months before this happens. The
    > wife can therefore stay and work in the U.S. based on having an AOS
pending
    > until her AOS is approved. On the other hand, he will conclude his
consular
    > processing and return to the U.S. shortly as a Permanent Resident and
start
    > working for company B.
    > Any comments?
    > Basically, would he be able to assign Consular Processing for the I-140
yet
    > his wife file an I-485 concurrently? Or should she wait until his I-140 is
    > approved and/or he gets his green card before she can file the I-485
through
    > follow-to-join or something like that?

The latter.

Ingo Pakleppa

On Tue, 13 May 2003 07:46:26 +0000, Henry wrote:

    >> > 3. Generally, can an applicant do Consular Processing and his
    >> > dependant do AOS?
    >> That is only going to be possible if the dependents have a status in their
    >> own right. If they have an H-4, the problem is that their H-4 ends the
    >> minute you leave the US for your consular interview. By the time you have
    >> your Green Card, they would be out of status and therefore ineligible to
    >> file an I-485.
    >
    > Hi Ingo,
    >
    > I may just be thinking out loud, but would the following scenario work?
    >
    > As the original poster said, he has an H-1 through his employer company A
    > and (let's assume that) his wife has H-4.
    >
    > What if:
    >
    > At the time he files the I-140, he indicates that he wants Consular
    > Processing but his wife files an I-485 concurrently with the I-140. He then
    > continues to stay in the U.S. on his H-1 and continues to work for company A
    > until the time of his consular interview arrives. It is true that his H-1
    > and his wife's H-4 will end the minute he leaves for consular interview, but
    > his wife has already filed the I-485 a few months before this happens. The
    > wife can therefore stay and work in the U.S. based on having an AOS pending
    > until her AOS is approved. On the other hand, he will conclude his consular
    > processing and return to the U.S. shortly as a Permanent Resident and start
    > working for company B.
    >
    > Any comments?

I don't think the wife is entitled to file an I-485 until the primary
applicant either filed one himself, or has a Green Card.

    > Basically, would he be able to assign Consular Processing for the I-140 yet
    > his wife file an I-485 concurrently? Or should she wait until his I-140 is
    > approved and/or he gets his green card before she can file the I-485 through
    > follow-to-join or something like that?

--
Remember, I am strictly a layperson without any legal training. I encourage
everybody to seek competent legal counsel rather than relying on usenet
newsgroups.

Please visit my new FAQ at http://www.kkeane.com with a list of interesting
immigration links.

My email address in usenet posts is now invalid for spam protection.

Please feel free to enjoy some of my photographs at my new Web site
http://www.ingopakleppa.com ! Comments are welcome.

brisray

Nothing to do with your question but I'm curious. Why would you choose to give up a good job with a stable company for a worse job with a company that seems likely to go down the tubes, especially as you may not get all your paperwork done before it does?

George

brisray wrote in message news:...
    > Nothing to do with your question but I'm curious. Why would you choose
    > to give up a good job with a stable company for a worse job with a
    > company that seems likely to go down the tubes, especially as you may
    > not get all your paperwork done before it does?

Because I do not have much time left on my H-1B.

As a matter of fact, if you have noticed in my original post, I hope I
can get work permit through the I-485 in order to stay at my current
job as much as possible.