I’m filing an I-140 under EB-1; all the documents are ready — there’s no other way. But I don’t understand what to do next about my tourist status. Do I need to change it or extend it while the I-140 is being processed, or how does that work? And then what — AOS right away or are there any intermediate steps?
I went through something similar on F-1 when my I-140 was being reviewed. The gist is: while the I-140 is pending, you need to do something about your status independently. The most reliable option on a tourist visa is to file Form I-539 to extend before your I-94 expires. It doesn’t matter how long I-539 is processed — even 10 months — the mere fact of filing keeps you in lawful status. As for AOS — once the I-140 is approved and the priority date becomes current, you file Form I-485. If the date is already current, you can even file I-485 at the same time as I-140; that’s concurrent filing.
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Thanks, andrey_dev — I get the I-539. If my I-94 is expiring soon, is it better to file the I-539 right now or can I wait until the last minute?
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Don’t wait — file it now, before your I-94 expires. I went through something similar: my B2 expired while my Form I-539 was pending for about five months — there were no problems; the fact that it was filed before the deadline is all that’s required. There’s no point in waiting until the last minute — if USCIS returns it for a technical reason, there won’t be time to fix it.
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One more point — after the I-140 is approved and the I-485 is filed, while the forms are pending with USCIS and the I-94 has already expired by then, a pending I-485 provides an authorized period of stay. Leaving the U.S. while the I-485 is under review has many pitfalls; that’s a separate discussion with an immigration lawyer.
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One more thing — it’s best not to file the I-140 within the first 90 days after entry.
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I heard from lawyers that you can file the I-140 even a month after entry — you don’t have to wait 90 days; it doesn’t affect anything. The I-485, though, can only be filed after 90 days. So if the documents are ready — go ahead and file)
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There’s a fundamental difference here between the I-140 and the I-485 regarding intent: the I-140 doesn’t affect anything — you can file it even a month after entering on a tourist visa. The 90-day rule was formally removed, but the possibility of problems with “preconceived intent” was left in place — and that applies specifically to the I-485, not the I-140. The I-485 is a direct declaration of intent to remain, so a 90-day buffer here actually makes sense.
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