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Eligible for H1B or EB2 AOS?Marriage AOS denied;2nd one pending; worked ilegally 5 mo

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  • Eligible for H1B or EB2 AOS?Marriage AOS denied;2nd one pending; worked ilegally 5 mo

    Hi everyone,

    I have been rejected the marriage based petition of alien and, furthermore, the I-485. The denial letter stated I did not meet the balance burden of proof, without implying fraud. I had a lot of documentation with me at the interview, but the officer only asked for specific documentation sauch as joint lease and insurance, which I provided.

    I filed a notice of appeal because, although I had mailed additional evidence for bona fides to the interviewer before the decision was made by the USCIS district director (please note that the denial came in the mail about 4 weeks after the interview), the decision was clearly made without the consideration of the extensive balance of additional evidence (joint credit cards, photos, dental insurance, etc.). This was clear from the text of the denial letter. I also filed a motion to reconsider for the petition of alien and a motion to reconsider for the AOS. They were both filed within a month of the decision to deny. I think the reason I was denied is that we live separately for employment reasons, although I have tickets that proove I see my wife every 2 weeks. They were also not taken at the interview.

    Since the appeal and motion to reconsider take a long time to process and I need to continue working, I also filled another AOS package (I-485, I-765, I-130 and I-131). The Advance Parole was approved about a month ago. The EAD application is still pending, but I have received an interim EAD for 3 month from the district office.

    My questions are:

    Am I eligible for an H1B now? Of course, I know that I could only change my status starting October, because of the cap being reached for H1B. Please note that I have not stopped working since my initial I-485 was denied. I worked illegaly for 5 months. I am aware that this migth be a problem, along with the fact that about a month passed between the I-485 denial and the receipt date for the new I-485. Also, I had not been out of status before I initially applied for AOS.

    Do you think it would be better to ask my employer to file for labor certification, then petition of alien for EB2 category? Is it tue that, if I worked illegaly for less than 6 months, I am eligible for employment based adjustment of status? I don't want to push that hard and take the risk of not being sponsored at all, unless I know that an EAD based on a EB2 category AOS application will have a better chance to be approved than an H1B. Please let me know what I should do. I would be grateful for any thoughts. Thanks!

    Mostovoi
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