A Olusanjo Omoniyi
Immigration Attorney
Answered on
You can currently file both EB-5 and E-2. You can inform your employer but, the choice is yours.
How can I file a EB-2 I-140 with a pending EB-5 I-485?
My husband submitted EB-5 485 AOS along with me as a dependent. Our I-485s has been pending for a couple of months. Meanwhile, my employer now is ready to file an EB-2 I-140 for me. Do I need to inform my employer about my pending EB-5 I-485 at EB-2 I-140 stage?
Answers
-
![Avatar]()
-
![Avatar]()
Bernard P Wolfsdorf
Immigration AttorneyAnswered onYou probably should let them know you have an adjustment pending, and you may also have to explain why you need an EB-2, However, there is nothing stopping a person from applying via multiple avenues.
-
![Avatar]()
Dale Schwartz
Immigration AttorneyAnswered onNo. Just let them file it.
-
![Avatar]()
Salvatore Picataggio
Immigration AttorneyAnswered onI-485 transfers are possible, so if anything your employer could be thrilled with bing able to take advantage of an already pending AOS application.
-
![Avatar]()
Johanna Keamy
Immigration AttorneyAnswered onIn general, an employer can file an Immigrant Petition (I-140) under EB-2 Classification (Exceptional Ability or Advanced Degree) even if an applicant has a pending I-485, application to register as a permanent resident alien. You indicated that your husband submitted an I-485 AOS along with you as a dependent. Did you also file Form I-765 and Form I-131 for work and travel authorization? If so, you can receive work and travel authorization within five months of filing (processing time subject to change.) What is the purpose of an additional filing? Pending divorce, concern about the future I-829, back-up plan? As far as informing your employer, additional information is needed.
-
![Avatar]()
-
![Avatar]()
Charles Foster
Immigration AttorneyAnswered onYou do not; the two petitions are separate and apart and separate petitioners.
-
![Avatar]()
Fredrick W Voigtmann
Immigration AttorneyAnswered onYou will need to disclose only the information necessary for Form I-140, so you should consult with your own immigration attorney about how to present such information to your employer. One case really does not affect the other.
-
![Avatar]()
Michele Franchett
Immigration AttorneyAnswered onThere is no obligation to inform your employer about the pending application. That said, it is always a good idea to ensure all information filed with USCIS is consistent, e.g. employment history dates, etc.
-
![Avatar]()
Steffanie J Lewis
Immigration AttorneyAnswered onYes, your employer would be filing the I-140 petition. If it is approved, or if a visa becomes current for you while the I-140 is pending, you will need to make a decision as to which I-485 you will be continuing to process. Filing the I-140 petition will likely cost your employer some money. It would be a courtesy to advise the employer that you have already filed an I-485 application based on an approved EB-5 petition. You can explain that adjusting status on the EB5 investment petition only gives you conditional Permanent Resident status in the U.S. If the regional center is not able to successfully establish that your husband''s investment has created 10 full-time positions in the designated enterprise, the condition will not be removed and your permanent residency status would terminate. If I were you, I would communicate with the regional center in which your husband invested to be sure that COVID and the recent changes in the immigration investment law, or other circumstances, have not jeopardized the project in fulfilling the 10 full-time position requirement. It is unclear if you filed an individual I-485 application, or were simply named as a dependent on the I-485 application filed by your husband. If you have a receipt for your individually filed I-485 application and you are assured that the regional center will be able to establish the 10 full-time position requirement, you have minimized the potential risk of advising your employer that you have already applied for U.S. permanent residency status on the approved EB-5 investment petition filed by your husband. Employers will, then, likely abandon the PERM certification by not filing the I-140 petition.
-
![Avatar]()
Lynne Feldman
Immigration AttorneyAnswered onNo, go ahead and just file the I-140. If it is approved you can decide which case you want to go forward or keep them both operational until the interview and then the Officer will ask you which one you want to withdraw.
