Transfer of pending I-485 application from one I-140 petition to a new I-140 petition/interfiling I-485

Question:

I obtained my PhD degree in Mechanical Engineering from a US University in May 2008. I am currently a Postdoc at a different US university.

I e-filed I-140 for EB1A and then mailed the I-140 e-file receipt, I-485, I-131 and I-765 all together yesterday. Now I would like to e-file another I-140 for NIW.

My question is if the EB1A I-140 is denied, can I transfer the I-485 to the NIW I-140.

Answer:

Transfer of pending I-485 application from one I-140 petition to a new I-140 petition is governed by Pearson’s memo and is called interfiling I-485. You can see the original memo at the link below. There are two conditions that should be met for interfiling. 1) Original I-140 should not be revoked or denied and 2) priority date for the new I-140 filing is current.

In other words interfiling of EB1a I-485 to NIW cannot happen after EB1a is denied.

We heard the interfiling happens automatically but sometimes uscis may not pick it up. So it is better to file.

In your case if you plan to submit an I-140 in the NIW category, you may be able to submit an interfiling letter soon so that the existing I-485 is transferred to NIW. This way if you think EB1a has lower chance of success; your I-485 can be used with NIW.

Here is a forum discussion on how some people have interfiled.

http://forums.immigration.com/showthread.php?183034-I-485-(VSC)-approved-for-spouse

Q1:

Our group cut funding on 12/31/2011. I think my H1B is invalid now since I am not on the payroll since 12/31/2011. If my employer file a new H1B petition for me, e.g. my boss find another new position for me in the same department or the same University, can I start working immediately as soon as the new H1B petition is filed. I don’t know if it is called the H1B extension or a new H1B filing since I may be not on the payroll for about a month or so before they find a new position for me.

Can I start working immediately as soon as the new H1B petition is filed or I’ll have to wait till the new H1B get approved? The time that I am not on the payroll could be only a few months before the department finds the new position for me.

Answer:

We are not experts at this. But your university immigration services should be able to advice correctly. We think you can stay while h1b is being processed but can only work once it is approved.