Navigating I-485 Filing (EB-2 NIW), O-3 to L-1B Change of Status

[asiv_visa 0]

Hello everyone,

I'm hoping to get some insights and advice on my current immigration situation, which has a few moving parts.

Here's a summary of where my spouse and I are at:

• I-140 Approved: We have an approved I-140 petition under the EB-2 NIW (National Interest Waiver) category, with a priority date of November 2023. We initially filed this from Canada and were set for consular processing.

• Current Status in the US: We recently moved to the U.S. My spouse is on an O-1A visa, and I am on an O-3 visa. I am currently on parental leave.

• Need to Work: As I am on an O-3 visa, I am not authorized to work. My employer is in the process of filing an L-1B petition for me so I can resume working in the United States.

• Priority Date is Current: As of this month, our I-140 priority date is current, which means we are now eligible to file for Adjustment of Status (AOS) using Form I-485.

This brings me to a few questions about the best way to proceed.

My Questions:

1. L-1B or I-485 First? What is the most strategic order of operations here?

   • Should I wait for my L-1B application to be approved before we file our I-485 applications? My main goal is to be able to return to work as soon as possible, and my understanding is that the L-1B would allow me to do that upon approval.

   • Alternatively, should we file the I-485 now that our priority date is current? If we do this, I know I would also need to file for an Employment Authorization Document (EAD), and I'm unsure of the current processing times for that. I've also been told that I may not be able to apply for the L-1B visa if I have a pending I-485 application.

2. Waiting Period for AOS after L-1B Approval? If I do get the L-1B visa first, is there any required waiting period before I can submit the I-485 application? I have heard about a "90-day rule," but I'm not sure if that applies in my situation since we already have an approved I-140.

3. Port of Entry for Canadians: As a Canadian citizen, can I process my L-1B paperwork at a U.S. Customs and Border Protection (CBP) Deferred Inspection Site within the U.S., rather than having to go to a land border or airport?

4. Anything I'm Missing? Given the complexities of our situation, I want to make sure I'm not overlooking any other important considerations. Any advice or shared experiences would be greatly appreciated.

Thank you in advance for your help!

[mam521 2,714]

Others can chime in, but if I were in your shoes, I'd probably secure the L1b first.  Why?  Because it secures you under your own, independent status on a visa type that is considered dual intent and one where you can travel.  IIRC, O visas aren't dual intent; L1's are.  I know you're adjusting off of your partner's EB, but once that I-485 is filed, you can't leave the country unless you either have the L1 or advanced parole.  You are a bit luckier because you will be the lone man out, able to travel straight away.  If you have kids, you may want to put them on L2 status for this reason, as well.  

 

As for the 90 day rule, it doesn't apply to USCIS.  It's a DoS thing.  It doesn't matter anyway for 2 reasons.  1. Your L1 is a dual intent visa.  2. Immigrant intent has already been established by your partner having the approved I-140.  

 

I can't comment to the Deferred Inspection site.  You could probably call and ask but I always went across the border when I was on my L1 and required some sort of servicing.