AC21 AOS Portability
Ability to Pay
Submitted by Chief Editor on
1. Is submitting consolidated returns and audited financial statements for a parent company and its wholly owned subsidiaries sufficient to meet the burden of proof for establishing the company’s ability to pay by a preponderance of the evidence? 2. Where an employee who is the beneficiary of an approved I-140 and is eligible for AC-21 portability ports to a new employer in the same or similar occupation, must the new employer demonstrate the ability to pay the proffered wage from the date of portability? 3. When adjudicating I-485 applications for portability-eligible individuals where the petitioning employer is no longer in business, does USCIS require the subsequent employer to satisfy both the ability-to-pay requirement and the bona fide offer of employment requirement from the date of the employee’s subsequent hire through the approval of adjustment of status? 4. Why are prorated net assets not sufficient evidence to support ability to pay? 5. Why is the Yates Memo not applied if a beneficiary’s W-2 indicates that the actual wage paid to him/her is at least as much as the beneficiary’s proffered wage for the prorated period?
1. USCIS says that it evaluates each consolidated financial statement on a caseby-case basis under the preponderance of evidence standard to determine whether the petitioner has the ability to pay the proffered wage.
2. USCIS says that, in this situation, the new employer is not obligated to demonstrate the ability to pay from the date of portability.
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AC-21, I-485 Denial Reversed
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We represented a Computer Software Engineer and his spouse. USCIS denied the applicant’s Form I-485 because his former employer withdrew his previously approved I-140 petition when the applicant moved to a different employer.
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Priority date retrogression -- consequences and concerns
Submitted by Chief Editor on
The current prediction that the priority dates for employment based green card applications are likely to retrogress again has brought a lot of speculation and questions from our clients and our community. Let me clarify some of the questions and concerns. Q 1. What happens if my priority date (“PD”) retrogresses while my I-485 is still pending? Q 2. Can we expedite the adjudication of our pending I-485 (or any application, for that matter)?
A 1. There are two possibilities. First, the case is not yet ripe for adjudication (for instance, it has not been assigned to an officer or the security clearances are not yet submitted or obtained), USCIS can shelf the case and not process it any longer untile the PD becomes current again. Second, USCIS can “preadjudicate” that case. That means the case is adjudicated and then shelved for PD to become current again. I do not believe there exists a mechanism currently to determine what USCIS will do with an individual case.
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Spouse of an O-1 - next step to Green Card
Submitted by Chief Editor on
I am the spouse of an O-1 visa holder and we live in the US (so I am on an O-3). His company is putting together the application for his green card, but do they need to do a separate one for me too? Or do I get one automatically if he gets one? Or do I have to wait until he gets one and then he applies for one for me? And what about our children - too young to work yet, but want to make sure they are ok too.
The way it works is that the company can file everyone's AOS (Form I-485) together OR they can first get your husband's I-140 approval and leave you to file the last step (AOS) for the family.
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Questions regarding I-485
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I am on H1-B visa and my EB-2 Priority Date is May 15, 2010. Please see below questions regarding I-485. Question # 1:- Typically, how long would it take to receive Advance Parole and EAD after filing I-485? Question # 2:- I entered USA on F1-Visa in year 2000, and then changed my status to H1-B visa within USA in year 2004. I never left USA since year 2000. My passport does not have H1-B visa stamp. In order to file I-485, is it required to have H1-B visa stamp in my passport? Question # 3:-After filing I-485 and before receving A.P., if I travel to my home country for H1-B visa stamping, is it possible that my company can mail A.P. documents to my home country so that I could enter USA using my A.P. in case H1-B visa in my home country is denied? Question # 4:- I came to know that it is required for an alien to be present in USA at the time of I-485 filing. Is it also required that an alien must be present in USA until A.P. is approved? Question # 5:- Does Visa Officer have the ability to cancel A.P., in case H1-B visa is denied in my home country due to 221(g)/missing tax returns/W-2's/Paystubs? Question # 6:- If my H1-B visa is denied in my home country, and if i enter USA using A.P., then could my spouse enter USA using H-4 visa using my valid I-797 approval notice even though I do not have H1-B visa stamp in my passport? If I enter USA using A.P., what are the options for my spouse? Question # 7:- At what point of time during GC process, do I need to add my spouse? Should it be before filing of I-485 or before Visa Number is available? Question # 8:- After filing my I-485, and if my spouse is in USA on H-4, will I be able to add my spouse to my I-485 application? By the time, I want to add my spouse to I-485 application, if Visa Number is available and if AOS/I-485 is approved, then would I still be able to add my spouse if spouse is in USA and also outside USA?
Answer 1: EAD is usally processed within 90 days and AP within 3-6 months. You can check I-131 processing times from links on this page: http://www.immigration.com/processin...-status-checks
Answer 2: A visa stamp is NOT required. Proper status only is needed.
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I saw my I-485 Denial notice after a week, It is a panicking situation. I changed my employer for permanent position, and my I-140 was cancelled by my old employer. I did not file my AC21, Lesson learnt is, talk to a good attorney rather than asking friends and well wishers. There I choose Rajiv Khanna, we got 30 days to appeal after denial, answered all my questions, It was 180 days passed after I-485 applied, It is not a correct decision from USCIS.
My case, Motion to reopen (MTR) received to USCIS in 10 days from Rajiv Khanna’s office. Do i need to say, He is the best and have a good team to support and help me out in a short time.
Guess what, my case was re-opened and I got my Green card in 2 months. I am waiting for my Family MTR and GC. It is time to thank Rajiv Ji , Kunal Ji and Team . I really appreciate for all the work you did in my difficult situation. Thank you.