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Can I apply for EB1/EB2-NIW on OPT extension with a PhD and PostDoc offer?

Published Dec 6,2018 By vishwa

Hello All,

I’m a PhD graduate currently on Initial OPT (approved in Aug 2018) and with a PostDoc offer.

My profile: Masters and PhD degrees from USA with 9 publications(growing), 5 citations(growing), travel fellowships (Boeing and grad school), NSF and FAA funded projects, worked on very challenging research areas (aerospace, robotics, control engineering), IEEE ETA-Kapp-Nu Inductee, member of professional organizations, peer reviewed 6 articles(growing), can get recommendations, currently holding postdoc offer in ocean science and marine engineering to start in Jan 2019.

My questions are as follows:

  1. Can I apply for EB1/EB2(NIW) once my OPT Ext is approved?
  2. Should I wait for I 140 to get approved before I apply I485, I765 and I131?
  3. Let’s say my I 140 is approved, normally how long does it take for I-485, – 765 and I-131 to get approved?
  4. Will it be possible to have them approved before my OPT extension expires?
  5. Once I-765 is approved, can I work for any employer?
  6. Can I apply for EB1A in future with a stronger profile, while my EB2(NIW) is pending? Or
  7. I can apply for EB1A await is decision and if denied, can I then reapply EB1A (with stronger profile by then) or EB2(NIW) before OPT extension expires?
  8. If I start the process right now before applying for OPT extension, can I have all approved before my current OPT expires in Aug 2019?
  9. Can I apply OPT extension and start GC process parallelly now? Will that jeopardize my OPT extension approval?
  10. If I-485 or I-765 pending and I’m nearing my OPT extension expiry, what are my options?

Any help will be greatly appreciated. Under current uncertain times, all I’m wanting is a smoother transition making use of everything in my capacity.

Thanks in advance.

 

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Tigran Kalaydzhyan
Tigran Kalaydzhyan
5 years ago

Hi Vishwa,

Please let us know in what country you were born. The answers depend on that. Thank you.

vishwa
vishwa
5 years ago

Hello Tigran,
Thanks for your quick reply.
I’m from India.

Tigran Kalaydzhyan
Tigran Kalaydzhyan
5 years ago

Hi Vishwa,

Thank you for the reply. Let me answer point by point.

[1] Yes, you can file I-140 for EB1/EB2-NIW at any time. However, even if I-140 is approved by USCIS, you have very limited options regarding filing I-485. Current backlog for Indian nationals is about 1 year for EB1A and about 9.5 years for EB2-NIW, which makes EB2-NIW practically unavailable for you (unless you are married to a national of any country except India and China), see the link below. In the current environment, getting EB1A I-140 approved with 5 citations is almost impossible.
https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2019/visa-bulletin-for-december-2018.html

[2] Yes, you will have to wait until your priority date becomes current, see the document above.

[3] Currently, I-765 and I-131 take about half a year. I-485 takes from a year to two years, depending on the processing center, see the link below
https://egov.uscis.gov/processing-times/

[4] If your OPT expires in Aug 2019, I would not bet you would go through the entire procedure of getting the green card by that time. Please keep in mind that the pending I-485 status allows you to stay in the U.S. even if F1 expires.

[5] Yes, you should be able to work for any employer.

[6] Yes, you can.

[7] Yes, you can.

[8] If your OPT expires in Aug 2019, I would not bet you would go through the entire procedure of getting the green card by that time.

[9] If you apply for OPT without renewing the F1 visa stamp in the passport and then start the green card process, it should not create a conflict of intents. If you file I-140 and then apply for OPT, this may or may not create a conflict of intents (in theory, it should, but in practice may not). The main problems will arise if you decide to get the F1 stamp after filing for the green card. There are many options, depending on sequence of actions you are willing to attempt.

[10] Your best option is to stay in the U.S. with I-485 pending status.

vishwa
vishwa
5 years ago

Hello Tigran,
Thanks for your detailed responses.

Can I apply I-140, I-485, I-765 concurrently under EB2(NIW) case after getting my OPT extension approved?
With current wait times for indian and chinese nationals, I thought by doing concurrent filing, I-485, I-765 will go pending, then I can stay and continue my work for any employer even though my OPT expires.
You think that is a possibility? I know it is a bit complicated, I’m definitely going to approach a lawyer. But, before consulting I’m gathering as much information as I can and making myself well aware of the whole process, rules and regulations.

My questions are based on the content I read from below link which answers related questions as below. Can you please confirm if my questions and approach are valid?

http://www.wegreened.com/I-140-and-I-485-concurrent-filing

Q) Can I file I-140 concurrently with I-485?

A) Yes, USCIS permits the concurrent filing of a Form I-140 and Form I-485, adjustment of status application. However, only the first three preference groups (EB-1, EB-2, EB-3) are qualified for concurrent filing.

In addition, the I-485 may be filed while the I-140 is pending if a visa number later becomes available. The concurrent filing rule allows USCIS to issue an Employment Authorization Document (EAD) and advance parole travel authorization while the I-140 petition is pending, if filed along with the I-485.

Q) If I file I-140 concurrently with I-485, will both petitions be adjudicated simultaneously? What if my visa is not current?

A) The USCIS has stated that adjudication of a concurrently-filed Form I-140 is not dependent on the adjudicative readiness of the Form I-485 The guidelines allow the USCIS to adjudicate and approve the visa petitions separately in cases in which a visa becomes unavailable after the concurrent filing. In these cases, the I-140 visa petition will be approved and the I-485 will be held in abeyance until such time as a visa number becomes available.

Q) In the case of I-485 abeyance after I-140 approval, can I file EAD and/or AP?

A) Yes. In the case of I-140 and Concurrent Filing, applicants will be eligible to apply for interim benefits such as employment authorization and advance parole while the I-485 application is held in abeyance.

Thanks for your time.

Tigran Kalaydzhyan
Tigran Kalaydzhyan
5 years ago
Reply to  vishwa

Hi vishwa,

You cannot file I-140, I-485, I-765 concurrently if your priority date is not current. You can file I-140 at any time, but I-485 and I-765 only when the priority date is current. Speaking of the provided quote, it is correct, but I would like to emphasize the phrase “in cases in which a visa becomes unavailable after the concurrent filing” – here “after” is the key word. In the visa bulletin, the “Dates for Filing Application” chart indicates the date when a green card applicant can submit an I-485 adjustment of status application. If the date on the chart is current (“C”) or your priority date is earlier than the date on this chart, you may file your I-485 adjustment of status application with USCIS. At the moment, for the Indian nationals, it’s 22MAY09.

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