Decoupling I140 and AOS

[fs2439 46]

Hello,

 

I am wondering if I can file AOS a few months after filing I140, while the I140 is pending (if I am current)? Or should it necessarily be either concurrently or upon approval of the I140? I would like to travel on my nonimmigrant Visa immediately upon filing I140 and then file AOS when I am back in the US.

 

Thank you

[HRQX 4,145]

24 minutes ago, fs2439 said:

I would like to travel on my nonimmigrant Visa immediately upon filing I140 and then file AOS when I am back in the US.

At POE you'll have preconceived intent to AOS. That isn't allowed with O-1.

[fs2439 46]

15 minutes ago, HRQX said:

At POE you'll have preconceived intent to AOS. That isn't allowed with O-1.

Not sure I understand. What is POE? Also, immigrant intent affects ability to enter the US? Thank you 

Edited November 6, 2019 by fs2439

[fs2439 46]

Oh, port of entry. I see

[fs2439 46]

May I file the entire application (I140+AOS) immediately upon returning to the US after three weeks abroad, or do I need to wait a specific amount of time before doing so?

[bmqsg5h3 12]

O-1 is dual intent and you can file I-140/I-485 anytime.

https://fam.state.gov/fam/09FAM/09FAM040213.html

 

You can still work in O-1 status while your I-485 is pending. However, once you leave the US without AP, your I-485 application will be considered abandoned. You will have to use AP to reenter the US, and after the reentry you cannot work in the O-1 status. If you plan to travel outside the US while your AOS is pending, you will need to apply for AP and EAD.

 

8 C.F.R. §245.2(a)(4)(ii)(C) doesn’t include O-1
https://www.law.cornell.edu/cfr/text/8/245.2

 

[bmqsg5h3 12]

FYI

https://fam.state.gov/fam/09FAM/09FAM040213.html#M402_13_5_B
DHS has determined that the approval of a permanent labor certification or the filing of a preference petition for an alien shall not be a basis for denying an O-1 or O-3 petition, a request to extend such a petition, or the alien’s application for admission, change of status, or extension of stay.  The alien may legitimately come to the United States for a temporary period as an O-1 or O-3 nonimmigrant and depart voluntarily at the end of his or her authorized stay and, at the same time, lawfully seek to become a permanent resident of the United States.

 

https://www.uscis.gov/sites/default/files/USCIS/About%20Us/Electronic%20Reading%20Room/Applicant%20Service%20Reference%20Guide/Nonimmigrant_Empl.pdf
Page 12
Can a nonimmigrant in O, P, or R status intend to immigrate permanently to the U.S.?
The approval of a permanent labor certification or the filing of a preference petition for an alien shall not be the basis for denying an , O-1, P, or R-1 petition, a request to extend such a petition, or the alien’s admission, change of status, or extension of stay. The alien may legitimately come to the U.S. for a temporary period and depart voluntarily at the end of his or her authorized stay and, at the same time, lawfully seek to become a permanent resident of the U.S. This provision does not apply to essential support personnel of O and P nonimmigrants.

[fs2439 46]

14 minutes ago, t-ten said:

FYI

 

 

https://fam.state.gov/fam/09FAM/09FAM040213.html#M402_13_5_B
DHS has determined that the approval of a permanent labor certification or the filing of a preference petition for an alien shall not be a basis for denying an O-1 or O-3 petition, a request to extend such a petition, or the alien’s application for admission, change of status, or extension of stay.  The alien may legitimately come to the United States for a temporary period as an O-1 or O-3 nonimmigrant and depart voluntarily at the end of his or her authorized stay and, at the same time, lawfully seek to become a permanent resident of the United States.

 

https://www.uscis.gov/sites/default/files/USCIS/About%20Us/Electronic%20Reading%20Room/Applicant%20Service%20Reference%20Guide/Nonimmigrant_Empl.pdf
Page 12
Can a nonimmigrant in O, P, or R status intend to immigrate permanently to the U.S.?
The approval of a permanent labor certification or the filing of a preference petition for an alien shall not be the basis for denying an , O-1, P, or R-1 petition, a request to extend such a petition, or the alien’s admission, change of status, or extension of stay. The alien may legitimately come to the U.S. for a temporary period and depart voluntarily at the end of his or her authorized stay and, at the same time, lawfully seek to become a permanent resident of the U.S. This provision does not apply to essential support personnel of O and P nonimmigrants.

Thanks!

[fs2439 46]

On 11/5/2019 at 9:20 PM, HRQX said:

At POE you'll have preconceived intent to AOS. That isn't allowed with O-1.

UPDATE: After speaking to my lawyer, and although USC website says it should be ok entering the country, HRQX raises an issue that has to be considered due to the officer's potential subjectivity. I decided to file concurrently after reentering the country