second marriage-based AOS pending (same wife); am I eligible for H1B or employment based EB3?

[Maxim Mostovoi 0]

Hi everyone,

I have been rejected the marriage based petition of alien and, furthermore, the I-485. The denial letter stated I did not meet the balance burden of proof, without implying fraud. I had a lot of documentation with me at the interview, but the officer only asked for specific documentation sauch as joint lease and insurance, which I provided.

I filed a notice of appeal because, although I had mailed additional evidence for bona fides to the interviewer before the decision was made by the USCIS district director (please note that the denial came in the mail about 4 weeks after the interview), the decision was clearly made without the consideration of the extensive balance of additional evidence (joint credit cards, photos, dental insurance, etc.). This was clear from the text of the denial letter. I also filed a motion to reconsider for the petition of alien and a motion to reconsider for the AOS. They were both filed within a month of the decision to deny. I think the reason I was denied is that we live separately for employment reasons, although I have tickets that proove I see my wife every 2 weeks. They were also not taken at the interview.

Since the appeal and motion to reconsider take a long time to process and I need to continue working, I also filled another AOS package (I-485, I-765, I-130 and I-131). The Advance Parole was approved about a month ago. The EAD application is still pending.

My questions are:

Am I eligible for an H1B now? Of course, I know that I could only change my status starting October, because of the cap being reached for H1B. Please note that I have not stopped working since my initial I-485 was denied. I am aware that this migth be a problem, along with the fact that about a month passed between the I-485 denial and the receipt date for the new I-485. Also, I had not been out of status before I initially applied for AOS.

Do you think it would be better to ask my employer to file an employment based I-485 along with a EAD application? The date would be current and they would be able to file the I-140, too. I don't want to push that hard and take the risk of not being sponsored at all, unless I know that an EAD based on a EB3 category AOS application will have a better chance to be approved than an H1B. I would have to move fast, because I have already received a letter for an interview for the marriage-based application in 2 months and I wouldn't like to depend on it. Please let me know what I should do. I would be grateful for any thoughts. Thanks!

Mostovoi

[kc456 0]

This is a pretty complicated issue, and most people on this forum probably are not familiar with gaining LPR through employment. If you are just now looking for H1B sponsorship, then LPR would probably be years off. I would pursue the refiled AOS application. You will probably also benefit from a consultation with an immigration attorney. Sorry I could not be of more help.

[nyc 0]

OK, by applying for H1B you automatically give up your filed AOS.

You can't do both.

You can either

continue with your AOS and go for your interview, etc

or

be sponsored.

Please note that getting the H1B is not that easy.

Mine for example was denied 2 years ago!

Reason: my degree was not absolutely necessary to do the job I was doing, other people at the same position as mine didn't have this degree.

Maybe if they see your persistance with the AOS it'll be a good thing...

Not sure.

Can you tell me what was in your denial letter? Did they mention removal proceedings?

[sjoefl01 1]

Have you considered actually living with your wife? That seems like it would be the easiest way! Did you marry so that both of you could part ways and make money? I think the USCIS made a proper decision. I know a lot of people will be angry with me but this seems bizarre to me. It seems like you are here fishing for some type of visa that will keep you in country.

I have no advice for you except to live with your wife!

[kc456 0]

While I don't quite agree with the above poster's opinion, I do feel that living together would be prudent.

[diadromous mermaid 36]

Hi everyone,

I have been rejected the marriage based petition of alien and, furthermore, the I-485. The denial letter stated I did not meet the balance burden of proof, without implying fraud. I had a lot of documentation with me at the interview, but the officer only asked for specific documentation sauch as joint lease and insurance, which I provided.

I filed a notice of appeal because, although I had mailed additional evidence for bona fides to the interviewer before the decision was made by the USCIS district director (please note that the denial came in the mail about 4 weeks after the interview), the decision was clearly made without the consideration of the extensive balance of additional evidence (joint credit cards, photos, dental insurance, etc.). This was clear from the text of the denial letter. I also filed a motion to reconsider for the petition of alien and a motion to reconsider for the AOS. They were both filed within a month of the decision to deny. I think the reason I was denied is that we live separately for employment reasons, although I have tickets that proove I see my wife every 2 weeks. They were also not taken at the interview.

Since the appeal and motion to reconsider take a long time to process and I need to continue working, I also filled another AOS package (I-485, I-765, I-130 and I-131). The Advance Parole was approved about a month ago. The EAD application is still pending.

My questions are:

Am I eligible for an H1B now? Of course, I know that I could only change my status starting October, because of the cap being reached for H1B. Please note that I have not stopped working since my initial I-485 was denied. I am aware that this migth be a problem, along with the fact that about a month passed between the I-485 denial and the receipt date for the new I-485. Also, I had not been out of status before I initially applied for AOS.

Do you think it would be better to ask my employer to file an employment based I-485 along with a EAD application? The date would be current and they would be able to file the I-140, too. I don't want to push that hard and take the risk of not being sponsored at all, unless I know that an EAD based on a EB3 category AOS application will have a better chance to be approved than an H1B. I would have to move fast, because I have already received a letter for an interview for the marriage-based application in 2 months and I wouldn't like to depend on it. Please let me know what I should do. I would be grateful for any thoughts. Thanks!

Mostovoi

My off the cuff answer would be that with a marriage-based AOS interview just 2 months hence, nothing along the lines of an employment based petition would move you closer to the goal of employment authorisation any quicker. An I-140 would be required and approved before an EAD, I suspect.

You might want to try posting this to http://www.britishexpats.com. They have an Immigration forum, dealing with immigration through employment.

[Maxim Mostovoi 0]

OK, by applying for H1B you automatically give up your filed AOS.

You can't do both.

You can either

continue with your AOS and go for your interview, etc

or

be sponsored.

Please note that getting the H1B is not that easy.

Mine for example was denied 2 years ago!

Reason: my degree was not absolutely necessary to do the job I was doing, other people at the same position as mine didn't have this degree.

Maybe if they see your persistance with the AOS it'll be a good thing...

Not sure.

Can you tell me what was in your denial letter? Did they mention removal proceedings?

No, they just said that I did not have enough evidence. Of course, they did not see it. I can't explain to myself why I did not offer to give that evidence at the interview.

For the position I am in, at least a Master's is required, so I assume that would not be a problem.

Could you please let me know where you found the information based on which you stated that by applying for H1B I automatically give up my filed AOS? Is there anything that precludes one from simultaneously hold an H1B and a marriage based EAD? Thank you.

ALso, I thank everyone who replied to my thread.

Mostovoi

[nyc 0]

OK, by applying for H1B you automatically give up your filed AOS.

You can't do both.

You can either

continue with your AOS and go for your interview, etc

or

be sponsored.

Please note that getting the H1B is not that easy.

Mine for example was denied 2 years ago!

Reason: my degree was not absolutely necessary to do the job I was doing, other people at the same position as mine didn't have this degree.

Maybe if they see your persistance with the AOS it'll be a good thing...

Not sure.

Can you tell me what was in your denial letter? Did they mention removal proceedings?

No, they just said that I did not have enough evidence. Of course, they did not see it. I can't explain to myself why I did not offer to give that evidence at the interview.

For the position I am in, at least a Master's is required, so I assume that would not be a problem.

Could you please let me know where you found the information based on which you stated that by applying for H1B I automatically give up my filed AOS? Is there anything that precludes one from simultaneously hold an H1B and a marriage based EAD? Thank you.

ALso, I thank everyone who replied to my thread.

Mostovoi

I have an MS as well.

You still have to watch.

Master's in what?

Do other people at similar positions have that degree?

They need other people's diplomas to check it, etc.

From what I remember it was a huge hassle.

I can't quote where I found the info about not being able to apply for the H1 and AOS.

I am sure.

When I started my AOS process I was on the F1 visa, which became not valid when I started the application process.

Hope it helps.

[Kez/JWolf 6]

Maybe you should just walk away from your AOS because it seems that you are more interested in getting authority to work than you are in sorting out your evidence peoblem with your marriage.... you are married but you dont live together USCIS had doubts about you marraige and from the little you have said here about your wife and marriage I can understand why.....

Is this a case of "I need to find a way of getting a Greencard.... any way You can"...

Sorry if I am wrong but that is how it come across to me....

Kezzie

[diadromous mermaid 36]

OK, by applying for H1B you automatically give up your filed AOS.

You can't do both.

You can either

continue with your AOS and go for your interview, etc

or

be sponsored.

Please note that getting the H1B is not that easy.

Mine for example was denied 2 years ago!

Reason: my degree was not absolutely necessary to do the job I was doing, other people at the same position as mine didn't have this degree.

Maybe if they see your persistance with the AOS it'll be a good thing...

Not sure.

Can you tell me what was in your denial letter? Did they mention removal proceedings?

The issues, as I understand it, lies in the fact that the H visa is non-immigrant (although it holds no prohibition from converting to immigrant) and a marriage-based petition is, of course, immigrant. As soon as an H applicant indicates immigrant intent, such as using an EAD, the H status is nullified.

No, they just said that I did not have enough evidence. Of course, they did not see it. I can't explain to myself why I did not offer to give that evidence at the interview.

For the position I am in, at least a Master's is required, so I assume that would not be a problem.

Could you please let me know where you found the information based on which you stated that by applying for H1B I automatically give up my filed AOS? Is there anything that precludes one from simultaneously hold an H1B and a marriage based EAD? Thank you.

ALso, I thank everyone who replied to my thread.

Mostovoi

I have an MS as well.

You still have to watch.

Master's in what?

Do other people at similar positions have that degree?

They need other people's diplomas to check it, etc.

From what I remember it was a huge hassle.

I can't quote where I found the info about not being able to apply for the H1 and AOS.

I am sure.

When I started my AOS process I was on the F1 visa, which became not valid when I started the application process.

Hope it helps.

[diadromous mermaid 36]

The issue, as I understand it, lies in the fact that the H visa is non-immigrant (although it holds no prohibition from converting to immigrant) and a marriage-based petition is, of course, immigrant. As soon as an H applicant indicates immigrant intent, such as using an EAD, the H status is nullified.

Edited May 6, 2006 by diadromous mermaid

[Kathryn41 3,205]

Maybe you should just walk away from your AOS because it seems that you are more interested in getting authority to work than you are in sorting out your evidence peoblem with your marriage.... you are married but you dont live together USCIS had doubts about you marraige and from the little you have said here about your wife and marriage I can understand why.....

Is this a case of "I need to find a way of getting a Greencard.... any way You can"...

Sorry if I am wrong but that is how it come across to me....

Kezzie

That is certainly my impressions as well. Instead of being devastated that an AOS marriage based application was denied, you seem more interested in trying to just get to stay in the US by whatever means are most expedient; nothing about how your wife feels, or you feel, or concerns about what type of additional evidence to present that would make the application acceptable, or concerns about verifying the validity of the marriage. It may indeed be valid but it doesn't come across that way by the way you are posting, so I too can see why USCIS had doubts.

[Lucky7 0]

Hi,

I am a H1B visa holder and I have been working since 2000 in U.S and I got married to my husband who is an American citizen so I filed AOS. To be honest with you, getting a H1B visa is much harder than getting married and get a greencard. You need to be qualified for the visa: ie: you need to have college or master degree that matches your job criteria. Your employer needs to proof that you value the company and that they need to hire you. Your offered salary needs to meet the USCIS requirement, etc.

You shouldn't think of H1B as back-up. There is no easy way out.

Edited May 10, 2007 by Lucky7

[no name 1]

Maybe you should just walk away from your AOS because it seems that you are more interested in getting authority to work than you are in sorting out your evidence peoblem with your marriage.... you are married but you dont live together USCIS had doubts about you marraige and from the little you have said here about your wife and marriage I can understand why.....

Is this a case of "I need to find a way of getting a Greencard.... any way You can"...

Sorry if I am wrong but that is how it come across to me....

Kezzie

[Dr_LHA 3]

The issue, as I understand it, lies in the fact that the H visa is non-immigrant (although it holds no prohibition from converting to immigrant) and a marriage-based petition is, of course, immigrant. As soon as an H applicant indicates immigrant intent, such as using an EAD, the H status is nullified.

Just to clarify this, H-1 status is only nullifed by either using EAD or having approved AOS (or of course if you lose you job or your H-1 visa expires). Having "immigration intent" in itself does not nullify H-1 visa. Such is the "dual intent" nature of H-1.