AOS filled through spouse while Employer starting PERM

[MnMJourney 28]

Hello fellow VJers,

After much procrastination, we finally completed and filed our I-130 along with the I-485 packet - see timeline below. I am the beneficiary and my wife is the USC, and we've been married for over a year. I am currently on a H1-B and adjusting from it. We have our acceptance letters, but no appointments yet.

I work for a large corporation that when I joined, they said that I would be automatically eligible for GC sponsorship after 1 year of employment. It didn't really matter to me at the time, as we always knew we were going the family route, since it would be much faster. I just got an e-mail from my HR department that they are automatically starting the PERM process, i.e the first steps of an employment based GC application. I've been with them for about 14 months now, so they are technically a bit late, but I never asked them to :-)

Before I replied to the e-mail asking them to stop, I took a moment to think about my options. I understand that the AOS through my wife is much faster, but there are no guarantees. We could possibly get an interview waiver, and the process be stretched along. The process with the interview could be plainly be stretched along as well and be over a year.

I also understand that one may concurrently be the beneficiary of multiple immigration petitions, i.e. one can be sponsored by work, parent, sister, all with different priorities. So I don't think we'd be in the wrong if my employer did file for me.

From a cost benefit perspective - it is not costing me a dime, my employer is covering it. So I'm wondering if there is strong justification for me to ask my employer to stop. The whole PERM process can take up to a year, before they will file the I-485. Hopefully by then, we'll have the family based I-485 sorted out if everything goes as planned. I guess the question is, will having a the PERM process started have any bearing on my family based I-485, that will likely be in the testing and interview stage at the time?

If things don't work out as planned with the current I-485 in a year, I'll likely have the PERM completed by then. Then my employer would file an employment based I-485 if still needed and get things going that route.

Would like to get everyone's thoughts and opinions if any. Am I missing anything that I should consider as well?

Thanks for all the help, and good luck on everyone's own journey!

Cheers!

[Pitaya 2,577]

~Moved from Family-based AOS to WST-based AOS Forum~

~Adjusting from work visa~

[hmh33 117]

Well, if you're worrying about being denied AoS through your wife by some technicality, that is really a baseless worry. But you're right that it won't harm you in any way to allow your employer to sponsor you. It won't have any impact on your family-based AoS. If I were your employer and found out about it, I might be a little annoyed that I'd wasted money on sponsoring you, however if it's a large corporation then I doubt they would care at all.

One thing you should do is give a copy of your green card to your employer's HR after you complete AoS and receive it. They'll need to update their I-9 records.

[MnMJourney 28]

Thanks hmh33!

I'd say my main concern isn't being denied on some technicality, its more that my application goes into limbo, like some of the member's stories we've read here. A number of members have written of an interview waiver, yet have not had their cases adjudicated in over a year. Of course there is no way to predict that. I'd just like to hedge my bets.

So my thinking is, if I have nothing to lose nor is it costing me anything, why not concurrently go down the employer route as well? I just don't know for sure the answer to the first part of the question - i.e. do I really have nothing to lose in my current application? Just don't want to let this process go on if it has any detrimental effect on my current I-485. Like I mentioned before, it wouldn't cost me anything besides spending time to put together the data required by the lawyers. And just as you mentioned, I doubt my employer would mind at the end with the cost, given the size of the firm.

Any other thoughts/opinions?

Thanks!

[AnotherLostSoul 167]

I have a question to you MnMJourney. So, my question is, could you ask your employer not to file for GC just yet. Say, can we do it next year? Or by the end of this year? Tell them, you are currently just going through family based AOS. If it's approved, you'll be a GC holder 3 months from now. However, you are wondering if they could apply for you say in July by which time you'll know if your AOS is denied. You'll tell them that since your "family based AOS failed" you'd like them to file "now" (that is whenever this happens) for employment based GC. Maybe I am asking this because I am not familiar with employment based visas (such as the H1B) or the process for a GC through employment. But is this a possibility? Again, I'm not saying go this way, I am actually asking if this is possible at all. Good luck though, I'm pretty sure you'll get your family based GC. I honestly have not found anyone here who failed. They had RFE, and denial due to missing interview appointment that they never got etc., but never remember reading one where they were deeply in love, and they had good evidences and yet they got denied. But maybe because I'm not lurking here that much...I have a life outside of this forum. LOL

[MnMJourney 28]

Hi AnotherLostSoul,

Thanks for your response. Yes, certainly what you've asked is a possibility - to wait for the outcome of my current I-485. But in my opinion, that may defeat the purpose. As you mention, most people adjusting with a genuine marriage don't get denied. But sometimes the process does get a bit prolonged, whether it get bogged down with RFEs or simply "stalled". The purposed of going along with the employer based app would be to hedge against that possibility. The PERM process takes about 6-12 months before the employer can file a I-485. My employment category is current, which means that my employment based AoS would "technically" take the same time as my family based AoS after the PERM. So the concurrent employment based AoS would only help if my family based AoS were to be delayed by 6-12 months.

Still not sure what to do. Guess I'll think about it some more. In the mean time, I've been purposely delaying the PERM process by just not responding to our lawyer's data requests. I was hoping to delay till at least my interview was scheduled, but on the dates for NYC filers, I may have to decide before that.

Cheers!

[aussie_jason 195]

It depends how much you enjoy your freedom or if you are willing to pay whatever penalty your company has for jumping ship if you decide to leave them if you get your green card through them, it isn't completely free to have your employer do it.

When is your current H1-B valid until? You should have your EAD in hand 60-90 days from 3/13 so if you have at least 90 days of validity on your current H1B I would advise your employer to stop the process, then once you get your EAD you are free to work for who ever you like.

Also if you wanted you could technically quit right now as you are legally present due to filing the I485 but you can't work until you get your EAD in hand.

[stanos86 5]

@MnMJourney

I don't think that would be an issue with you as long as the marriage is genuine. You can have multiple applications with USCIS as long as it not a duplicate one from same souce of petition (eg. Same employer filing 2 h1-b for you for same positions).

Like you I was on H1-B with approved labor certification and filed for I-140 along with my H1-B renewal going on when I had filed for my AOS process via marriage. Got my AOS process done smoothly.

[Morningmist 76]

I was in the same boat last year. I say start it. By the time they get done with the recruiting phase you might already have the GC in hand and it might save them actually filing the PERM with the DOL. If not , they can then file the PERM.