H4 EAD / H1B/ Path to GC

Hello ,
Below is my situation . Experts and other please pitch in and share your recommendation , so I can have clear information .

  1. In US for the past 14 years in H1B.
  2. In Aug 2020 , had to apply for H4 .
  3. Currently I have H4 EAD approved, last week.

I have an I-140 approved , and my PD is April 2010 (EB-2). My spouse GC process is going on , with the I-765 in process. My spouse PD is June 2012 ( EB2-EB3 downgrade) .
Irony is ,my date is current , but I am stuck in H4 EAD now . In the above situation , what is the best way to go forward.

  1. Is there a way, if I get into a new employer sponsoring H1B ( H4-H1B), can my GC process be continued without the PERM ( If I take the same job responsibility). Is there something like 204J. Please throw some light here .

  2. Any recommendation on , how soon can June 2013 become current on the final action date.

My biggest concern is , if the new employer takes 6 months to a year to file a GC , and by the time if my date ( April 2010) retrogresses, I will miss this wave .

Please help with some valuable suggestion, to navigate in the right direction.

  1. Your spouse priority date of June 2012 (EB2 to EB3 downgrade) should be current by July or August this year under the EB3 final action chart. So my suggestion is to be on H4 EAD and find a job. I am assuming that your ex-employer who sponsored your GC do not have the GC job available for you any more and so can’t proceed with AOS. Finding new employer to sponsor H1B and doing COS from H4 to H1B will be time consuming.

  2. Guessing you have a typo here, is it June 2012 (My spouse PD is June 2012) or 2013?
    Per Charlie, USCIS has 262K GCs for Employment based (140k + 122k spill over from family based) for this year which they plan to process till 30th September. For next year (Oct’21-Sep22) ther ewill be approximately 275k GCs available foe employment based (140k + 135k spill over from family based). EB3 may go past 2016 or even 2017 by 30th Sep’22 and chances of retrogression are minimal due to sheer number of visas available.
    Here is my prediction for EB3 final action chart movement for this year.
    June → Nov 2011 (June bulletin already out)
    July → June 2012
    August → Jan 2013
    September → Jan 2014

The above forward movement may change based on number of downgrade applications however we can be positive of EB3 moving faster than EB2 till at least september of this year.

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Thanks so much . It’s indeed a typo. The PD is June 2012. So going by the current trend and what you pointed out, I am assuming the Final action date would be current by July-Aug 2021.

In my case , my earlier employer who processed my I-140 in EB-2 mightn’t have the same position . That being the case , should the new employer still start the PERM , even if I take similar responsibilities . This is more for my clarification as I needn’t have to do any of these , if my spouse PD becomes current .

My last question . In our case , since my spouse being primary applicant I-765/I-131/I-485 were filed together end of Oct 2020. When I spoke to USCIS , their processing time is 6 months. Going by that , I am assuming I-765 should be approved for both of us sometime this month or next month ( June 2021). Since I-485 take more time to process, can my spouse change the employer with I-765, as I-485 would have been more than 6 months ( 180 days) from the date of filing. Does it have any impact on the I-485 processing, and anything the new employer needs to do .

Secondly, does changing the employer affect my H4-EAD .

@Kalpesh_Dalwadi /@anil_am22 - Can you please pitch in and clarify my doubt I raised . Really appreciate all the guidance and responses.

Your new employer will need to go through the same process, PERM → I-140 → AOS.

Under AC21 job portability rule, your spouse can change the employer while AOS is pending for more than 180 days. Be aware of the risk in using your AOS EAD as your spouse will no more be in H1B status. This means that you too will be using AOS EAD for your job. If for some reason your AOS gets denied, you guys will be out of status.
No impact on your AOS /I-485 application. Your spouse will need to file 485J - https://www.uscis.gov/sites/default/files/document/forms/i-485supj.pdf

Attorneys normally suggest to maintain H1B/H4 status till your GC is approved and received. Contact your spouse’s attorney for further advice.

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Thanks @Kalpesh_Dalwadi . I am aware of the highlighted scenario, where you have called out the risks associated with AOS and job changes. In the same context, can my spouse change the job with H1B transfer and the new employer can handle the rest of the GC process while we file 485J. Is this a valid solution , which helps maintain the H1B status, as well change the job when AOS is pending more than 180 days.

Is there any visibility on , when can we expect approved GC ( assuming the June 2012 becomes current in July-Aug time frame).

Yes.

You should receive RFE for medical if you have not submitted one with your AOS application. After your medical is submitted, your I-485 status should be updated to ‘Response To USCIS’ Request For Evidence Was Received’. At this point your 485 application is deemed completed (unless USCIS needs any other documents). The processing starts once your file is complete.

Check out the processing time based on the NBC location your application is at.

Note that the time shown may not be accurate and vary based on current workload.

I have heard that folks who had their PD current last year have received approval and GCs from anywhere between 6 to 10 months. Since last year, USCIS is waiving off interview for EB categories which is making the whole process faster.

Thanks for the quick response . We have already submitted the medicals along with the whole packet . Going by the sheer number of applications which have/might become current on their PD’s, I am assuming that it might take several months before getting the GC .

In that assumption , I believe ,best bet is to do a H1B transfer to a new employer (abiding by same/similar occupation, roles) along with 485J to avoid risks , and then wait for GC . Please correct if any of my understanding is wrong.

Also, since my spouse EB2-EB3 downgrade application for I-140 is pending, does it benefit to do a PP under this context . Is it advisable/recommended to get the I-140 downgrade processed, before the PD becomes current .

I would definitely do PP for the downgrade, good to have I-140 approved before your PD gets current otherwise I-485 wont get processed till I-140 is approved creating further delays in AOS and GC.