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File I-485 when on a grace period after visa expired

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  • File I-485 when on a grace period after visa expired

    I am currently on J-1 status, expired today but it has 30 days grace period to stay lawfully. I have sent my I-140 (EB2 NIW) yesterday, hope to get my Receipt Notice soon. Will it be OK to file my I-485 then, together with EAD and Advance Parole requests?

    Thanks for any hints!
    Last edited by triv; 10-31-2019, 01:33 PM.

  • #2
    Hi I also entered USA with a J1 visa. I got married a couple weeks before my visa expired and filed my AOS together with the Advance parole and employment permit before my grace period ended. We are also working with an immigration lawyer. My interview will be 3 weeks from now

    Are you marriage based or employment based?
    Married to a USC
    AOS from J1
    ***
    07/12: AOS Packet was sent to USCIS Lockbox Facility at Chicago, IL.
    07/15: Priority Date
    08/02: Bio Notice
    08/16: Bio Complete
    08/20: Bio Review done
    09/30: Courtesy letter for I-693
    10/09: Ready to be scheduled for interview
    10/10: Interview was scheduled
    10/17: Received notice for interview
    11/21: Interview and Approved/New card is being produced(I-485)
    11/22: Case Approved
    11/26: Card sent
    11/27: Card was picked up by USPS
    11/29: Card on hand

    Comment


    • #3
      Originally posted by patientlywaiting2019 View Post

      Are you marriage based or employment based?
      I-140 is employment based.

      F-1 OPT to AOS IR-1 (married to USC)
      Forms I-485, I-130, I-765, I-131
      National Benefits Center
      Field Office: Minneapolis, MN
      10/17/2019 Sent through USPS
      10/21/2019 Official Received and Priority Date
      11/05/2019 Text NOA cases received, w/4 numbers
      11/06/2019 Checks cashed out
      11/09/2019 Received official I-797C NOAs through mail
      11/18/2019 Biometrics appointment letter received for 11/26
      11/27/2019 Status updated to fingerprints were taken
      12/31/2019 RFIE email notification

      Comment


      • #4
        hi patientlywaiting2019, thanks for your input! I'm not sure though if my case is similar to yours because mine is EB-2 NIW which employment based, but I submitted it as a self-petitioner, and I am not employed now...

        Comment


        • #5
          I-485 can be filed during any month in which your priority date can file for your category and country of chargeability according to this chart. If your category and country of chargeability is current for the month, you could file I-140 and I-485 together; there is no need to file I-140 first. Since you already filed I-140, when you get the I-140 receipt, if your priority date can still file for your category and country of chargeability at that time, you can file I-485 with a copy of your I-140 receipt. You can file I-765 for EAD and I-131 for AP when you file I-485.

          This is my personal opinion and is not to be construed as legal advice.

          Comment


          • #6
            newacct Thanks a lot! My category+country is current. I was mostly worried about my formal immigration status after visa expiration but now I see I can still consider it unchanged for the grace period.
            So, if I understand correctly, after I file my I-485 (with I-140 receipt), my status will become "I-485 pending" allowing me to stay in the country even after the visa grace period, until I receive the I-485 decision, right?


            P.S. also, I'm still puzzled whether it is OK to file it while not having a job/job offer, because here for example it looks like the opposite:
            Q: My husband's National Interest Waiver (NIW) petition was recently approved, and a visa number is available. However, he just lost his job. Given that we do not have income now, are we able to adjust our status?

            A: Yes, but you will need a sponsor who is willing to sign an affidavit of support for you and your husband. If you yourself become employed, you can obtain an employment letter and sign an affidavit of support on your husband’s behalf.
            Last edited by triv; 10-31-2019, 07:55 PM.

            Comment


            • #7
              Originally posted by triv View Post
              newacct Thanks a lot! My category+country is current. I was mostly worried about my formal immigration status after visa expiration but now I see I can still consider it unchanged for the grace period.
              1) During your grace period, you are in status. 2) Since you are in an employment-based category, you are eligible for Adjustment of Status even if you are out of status if you have not been out of status or working illegally for more than 180 days since your most recent admission.

              Originally posted by triv View Post
              So, if I understand correctly, after I file my I-485 (with I-140 receipt), my status will become "I-485 pending" allowing me to stay in the country even after the visa grace period, until I receive the I-485 decision, right?
              Pending I-485 is not a "status". Having a pending I-485 allows you to stay in the US regardless of whether you have a status or not.

              This is my personal opinion and is not to be construed as legal advice.

              Comment


              • #8
                Thank you so much newacct, this is very helpful!

                I owe you a beer (at least)

                Comment


                • #9
                  Originally posted by newacct View Post
                  Pending I-485 is not a "status". Having a pending I-485 allows you to stay in the US regardless of whether you have a status or not.
                  A relevant question to the topic of this post: If the AOS is denied and the old EAD had also expired, I assume the person will fall out of status and must leave the States. Is there a grace period for that as well? If so, then could they file for another I-140/I-485 (assuming current) during that grace period?

                  Comment


                  • #10
                    Originally posted by elgordito View Post

                    A relevant question to the topic of this post: If the AOS is denied and the old EAD had also expired, I assume the person will fall out of status and must leave the States. Is there a grace period for that as well? If so, then could they file for another I-140/I-485 (assuming current) during that grace period?
                    An employment-based I-485 can be filed when out of status if the person has not been out of status or working illegally for 180 days since the most recent admission. If it is already more than 180 days since the person's status ended, they would not be able to file I-485.

                    This is my personal opinion and is not to be construed as legal advice.

                    Comment

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