Illegal or Out of Status? Please Help

[guccimane]

Hello All,

We are about to file a green card petition for my husband I married in March. He was on F1 to H1B to F1 and H1B and now is either illegal or out of status.

He maintained legal H1B status until November of 2008. On November 25th he traveled to his home country and returned on December 29th of the same year. He had been on vacation.

He returned on his H1B visa to find that he had been laid off from his job [sneaky I know] because he did not show enough commitment to the firm by taking the vacation four months into his employment. His employers assured him they had not notified USCIS of his termination so it was okay for him to find another position and transfer his H1B.

Apparently the partner in the firm who gave him that information, had not checked with HR. HR had fired of a letter to USCIS indicating he was terminated November 21st 08. Upon his applying to USCIS jn March to transfer his H1B, he was given an RFE to prove that he had been in status during the period. Because he was out of status, he amended his petition to consular processing. It was approved on June 25 2009 with an expiration date of 07/01/2010. Please note that the expiry date on his I-94 was 04/30/2010. He however did not not go back because he said he feared the consular officer might decide not to forgive his "out of status" period and in any case he planned to return to his country for good after working a few months. He continued working until his accident and then I met him.

He got involved in an almost fatal motorcycle crash and was laid up for nine months which precluded him leaving and thats how we met. I want him to stay. Now we are about to file the green card petition ourselves since I am a USC.

My question more importantly is he prevented him from adjusting status?

We believe he does not have an automatic ban and some confirmation or otherwise would be helpful. Will he be needing a waiver?

Thanks to all.

 

[BigJoe5]

You need a good lawyer to figure that one out.

He was inspected and admitted although it is unclear of exactly when each even happened.

Did he know he was fired when he re-entered on the H1-B?

Did they fire him afterwards and exactly when did they HR person notify USCIS of termination?

He might be considered as having made a lawful entry for adjustment as an IR of a USC but have gone out of status enough to prevent renewing/transferring/extending an H1-B inside the U.S.

Timing of events is the issue that will be most influential in the outcome.

Gather that info and see a competent lawyer.

 

[guccimane]

Thanks for your response. Perhaps I was not clear enough. The timeline is he left the US on the 25th of November 2008, re entered on 29th December 2008. He filed for transfer around January 20th 2009 and was issued the RFE on March 24 2009. I hope this helps in making a determination. At the time he re entered we had not even met and thus were not married. I met him in 2010 during his hospitalization.

I honestly from my reading believe he was out of status immediately he arrived on December 2009 and started accumulating illegal presence on April 30 2010. Some more opinions would be appreciated. I do understand that people on here are not lawyers but I know there are people on here with a pretty good understanding of the immigration process.

Thanks in advance.

 

[BigJoe5]

Thanks for your response. Perhaps I was not clear enough. The timeline is he left the US on the 27th of November 2008, re entered on 29th December 2008. He filed for transfer around January 20th 2009 and was issued the RFE on March 24 2009. I hope this helps in making a determination. At the time he re entered we had not even met and thus were not married. I met him in 2010 during his hospitalization.

I honestly from my reading believe he was out of status immediately he arrived on December 2009 and started accumulating illegal presence on April 30 2010. Some more opinions would be appreciated. I do understand that people on here are not lawyers but I know there are people on here with a pretty good understanding of the immigration process.

Thanks in advance.

You missed the most important part.

WHEN did he learn that he had lost the job?

IF before he entered on the H1-B then he committed intentional immigration fraud.

IF after he entered, then he did not commit intentional immigration fraud.

It makes the world of difference.

 

[guccimane]

You missed the most important part.

WHEN did he learn that he had lost the job?

IF before he entered on the H1-B then he committed intentional immigration fraud.

IF after he entered, then he did not commit intentional immigration fraud.

It makes the world of difference.

He returned on his H1B visa to find that he had been laid off from his job [sneaky I know] because he did not show enough commitment to the firm by taking the vacation four months into his employment.

 

[Jackolantern]

HR had fired of a letter to USCIS indicating he was terminated November 24th 08.

You said he left the US on Nov. 27, 2008, which would be Thanksgiving Thursday. So what was he doing on Monday to Wednesday, 24th to 26th? If he was working for them on those days, how could they tell USCIS he was terminated on the 24th? Are you sure you have those dates right?

Anyway, he is illegally present in the US. But illegal presence doesn't mean he is ineligible for adjustment of status.

A more meaningful question, which is more relevant to his eligibility to adjust status based on marriage to a USC, is whether he entered the US with inspection (i.e. legally and without fraud). I am inclined to say yes, if he was first informed of the termination after returning from vacation. Does he have a job termination letter? Is it dated after he returned to the US, or at least after he left on vacation?

 

[Jackolantern]

He returned on his H1B visa to find that he had been laid off from his job [sneaky I know] because he did not show enough commitment to the firm by taking the vacation four months into his employment.

What a sh!tty company. If vacation time was such an issue, they should have just denied his vacation or told him to restrict it to a shorter time.

 

[BigJoe5]

Thanks for your response. Perhaps I was not clear enough. The timeline is he left the US on the 27th of November 2008, re entered on 29th December 2008. He filed for transfer around January 20th 2009 and was issued the RFE on March 24 2009. I hope this helps in making a determination. At the time he re entered we had not even met and thus were not married. I met him in 2010 during his hospitalization.

I honestly from my reading believe he was out of status immediately he arrived on December 2009 and started accumulating illegal presence on April 30 2010. Some more opinions would be appreciated. I do understand that people on here are not lawyers but I know there are people on here with a pretty good understanding of the immigration process.

Thanks in advance.

Since you did not even know him when all this happened, perhaps he has not conveyed the information accurately. You say you met him after a near fatal accident, that could have left him somewhat confused on details.

Try to gather everything he has about this in writing and take it to a lawyer. Hopefully he still has the postmarked envelopes and can try for a FOIA request to get the exact dates when documents were postmarked when mailed by the employer and date stamped as rec'd by USCIS. Also check the dates in his passport and ticket/boarding passes, credit card receipts, travel agent itinerary, whatever...

A cynical immigration officer may view the situation as an elaborate fraud.
Who petitioned for his H1-B?
Did he know that person?
Did he pay that person to petition for him?

If they were so hot to get him in board how come they let him take one month vacation after only being on the job for a short time?

How could the employer let him go so easily after forking out so much money to petition him?

Do you see how it looks from a distance?

And now he meets and marries a USC who met him (in the hospital, during rehabilitation therapy, in a support group for accident victims???) and feeds her a sob story and gets her to pursue a greencard for him very quickly after marrying. Did he tell you about his immigration issues before or after becoming "romantically involved" or on the honeymoon?

These are things that any half-way competent immigration officer will wonder.

Did he get issued a form I-862 Notice to Appear (NTA)? You say he got an RFE about the H1-B extension/transfer in March 2009...well, that was over 2 years ago. Was he denied and told to depart the U.S.? Has he been placed in Removal Proceedings? IF yes, when? If yes, was an NTA issued before you married or after? IF yes and IF after, the marriage is legally presumed to be a fraud greencard marriage unless you can prove otherwise. IF an NTA has been issued, you may not file concurrent I-130 and I-485, because the I-485 is within the sole jurisdiction of an Immigration Judge (IJ). USCIS would have to deny it if it accepted it in error, and NO refunds are given for that.

USCIS retains jurisdiction on an I-130 and the IJ has ZERO authority to adjudicate an I-130 ever. An approved I-130 MUST be in hand in order to file an I-485 with an IJ.

You have not provided sufficient information on all the little details and perhaps you are unaware of the significance of all those details.

GO SEE A COMPETENT IMMIGRATION LAWYER FAST.

 

[guccimane]

You said he left the US on Nov. 27, 2008, which would be Thanksgiving Thursday. So what was he doing on Monday to Wednesday, 24th to 26th? If he was working for them on those days, how could they tell USCIS he was terminated on the 24th? Are you sure you have those dates right?

Anyway, he is illegally present in the US. But illegal presence doesn't mean he is ineligible for adjustment of status.

A more meaningful question, which is more relevant to his eligibility to adjust status based on marriage to a USC, is whether he entered the US with inspection (i.e. legally and without fraud). I am inclined to say yes, if he was first informed of the termination after returning from vacation. Does he have a job termination letter? Is it dated after he returned to the US, or at least after he left on vacation?

JackOLantern,

Thank you for your comments. Thankfully my husband kept all his immigration documents from when he came to grad school on F1 in 2000 till present so I have them at hand here.

He was a strategy consultant for consulting firm [Not one of the sweat shop ones that import cheap H1 workers] he joined after business school making about $138k. Apparently the tanking of the economy around late 08 led to layoffs with the firm. No he did not receive a termination letter. He was "on the bench" from mid October till he left. He however was getting paid while on the bench. I have his RFE Notice here from USCIS, dated April 03 2009 asking him to prove he was in status from his termination date of November 21 2008.

Because he was out of status, he amended his petition to consular processing. It was approved on June 25 2009 with an expiration date of 07/01/2010. Please note that the expiry date on his I-94 was 04/30/2010. He however did not not go back because he said he feared the consular officer might decide not to forgive his "out of status" period and in any case he planned to return to his country for good after working a few months. He continued working until his accident and then I met him

 

[guccimane]

Since you did not even know him when all this happened, perhaps he has not conveyed the information accurately. You say you met him after a near fatal accident, that could have left him somewhat confused on details.

Try to gather everything he has about this in writing and take it to a lawyer. Hopefully he still has the postmarked envelopes and can try for a FOIA request to get the exact dates when documents were postmarked when mailed by the employer and date stamped as rec'd by USCIS. Also check the dates in his passport and ticket/boarding passes, credit card receipts, travel agent itinerary, whatever...

A cynical immigration officer may view the situation as an elaborate fraud.
Who petitioned for his H1-B?
Did he know that person?
Did he pay that person to petition for him?

If they were so hot to get him in board how come they let him take one month vacation after only being on the job for a short time?

How could the employer let him go so easily after forking out so much money to petition him?

Do you see how it looks from a distance?

And now he meets and marries a USC who met him (in the hospital, during rehabilitation therapy, in a support group for accident victims???) and feeds her a sob story and gets her to pursue a greencard for him very quickly after marrying. Did he tell you about his immigration issues before or after becoming "romantically involved" or on the honeymoon?

These are things that any half-way competent immigration officer will wonder.

Did he get issued a form I-862 Notice to Appear (NTA)? You say he got an RFE about the H1-B extension/transfer in March 2009...well, that was over 2 years ago. Was he denied and told to depart the U.S.? Has he been placed in Removal Proceedings? IF yes, when? If yes, was an NTA issued before you married or after? IF yes and IF after, the marriage is legally presumed to be a fraud greencard marriage unless you can prove otherwise. IF an NTA has been issued, you may not file concurrent I-130 and I-485, because the I-485 is within the sole jurisdiction of an Immigration Judge (IJ). USCIS would have to deny it if it accepted it in error, and NO refunds are given for that.

USCIS retains jurisdiction on an I-130 and the IJ has ZERO authority to adjudicate an I-130 ever. An approved I-130 MUST be in hand in order to file an I-485 with an IJ.

You have not provided sufficient information on all the little details and perhaps you are unaware of the significance of all those details.

GO SEE A COMPETENT IMMIGRATION LAWYER FAST.

Big Joe Damn you are good! You should become a prosecutor. smile

We do not have the money for a competent immigration lawyer at this point. To answer your questions:
Thankfully my husband kept all his immigration documents from when he came to grad school on F1 in 2000 till present so I have them at hand here. No he did not get a notice to appear. Ne he was NOT denied and told to depart the U.S. No he has NOT been placed in Removal Proceedings? No he did not personally know anyone at the company that hired him out of business school. He started with them in June and went back home for ten days in September to see his sick father. Probably that did not sit well with them so when he left again in December, coupled with the economy perhaps they figured to cut their losses, especially since he was the highest paid senior consultant at the firm.

He was a strategy consultant for consulting firm [Not one of the sweat shop ones that import cheap H1 workers] he joined after business school making about $138k. Apparently the tanking of the economy around late 08 led to layoffs with the firm. No he did not receive a termination letter. He was "on the bench" from mid October till he left. He however was getting paid while on the bench. I have his RFE Notice here from USCIS, dated April 03 2009 asking him to prove he was in status from his termination date of November 21 2008.

Because he was out of status, he amended his petition to consular processing. It was approved on June 25 2009 with an expiration date of 07/01/2010. Please note that the expiry date on his I-94 was 04/30/2010. He however did not not go back to his country for consular processing because he said he feared the consular officer might decide not to forgive his "out of status" period and in any case he planned to return to his country for good after working a few months. He continued working until his accident and then I met him

 

[BigJoe5]

Among all that documentation. What is the date of the letter from the company that informed him of his termination (and the postmark on that) (under USCIS regulations, it is presumed that the item will be rec'd 3 post office business days after the postmark date).

I note that in one post the termination date was the 24th but now it is the 21st and he departed on the 27th. However, it has not been shown or explained exactly how or when he was notified of the termination.

At one point he had some advance notice from someone at the company BUT a different person at the company handled the paperwork.

This is all relevant in going back to the original consideration. Upon his last entry, did he know or should he have known that he did not have a job waiting for him? That is the point at issue in whether or not he is eligible to file for adjustment of status.

Also, has he provided any and all changes of address to USCIS? He should file a FOIA request to find out what USCIS has on him, just because he does not have an NTA in hand does not mean that one was not issued.

 

[Jackolantern]

I have his RFE Notice here from USCIS, dated April 03 2009 asking him to prove he was in status from his termination date of November 21 2008.

Terminated November 21? In an earlier post you said November 24. And can you clarify the following?

You said he left the US on Nov. 27, 2008, which would be Thanksgiving Thursday. So what was he doing on Monday to Wednesday, 24th to 26th? If he was working for them on those days, how could they tell USCIS he was terminated on the 24th?

What is the date of the last paycheck he received?

 

[Jackolantern]

If they were so hot to get him in board how come they let him take one month vacation after only being on the job for a short time?

How could the employer let him go so easily after forking out so much money to petition him?

Apparently it's a large company where the left hand doesn't know what the right hand is doing. It could be that the manager of one department wanted him badly and pulled strings with higher-ups to get his H1B paperwork through, but HR didn't like having H1B's on the payroll so they pushed to kick him out when they got the opportunity.

Similarly, I've seen other bizarre actions such as hiring a bunch of people in one month and then laying off most of them the next month.

 

[guccimane]

Among all that documentation. What is the date of the letter from the company that informed him of his termination (and the postmark on that) (under USCIS regulations, it is presumed that the item will be rec'd 3 post office business days after the postmark date).

I note that in one post the termination date was the 24th but now it is the 21st and he departed on the 27th. However, it has not been shown or explained exactly how or when he was notified of the termination.

At one point he had some advance notice from someone at the company BUT a different person at the company handled the paperwork.

This is all relevant in going back to the original consideration. Upon his last entry, did he know or should he have known that he did not have a job waiting for him? That is the point at issue in whether or not he is eligible to file for adjustment of status.

Also, has he provided any and all changes of address to USCIS? He should file a FOIA request to find out what USCIS has on him, just because he does not have an NTA in hand does not mean that one was not issued.

He NEVER had a termination letter from the company. He was informed of his termination by phone when he RETURNED from his trip some time in January 09 and asked to be placed on an assignment instead of on the bench.

 

[guccimane]

Terminated November 21? In an earlier post you said November 24. And can you clarify the following?



What is the date of the last paycheck he received?

His termination date ACCORDING to USCIS was November 21st [The earlier 24th was a typo]. The company notified him of termination by phone in January upon his return. He received a paycheck in late November. Can try to dig out the records for the date of his last paycheck.

 

[guccimane]

Apparently it's a large company where the left hand doesn't know what the right hand is doing. It could be that the manager of one department wanted him badly and pulled strings with higher-ups to get his H1B paperwork through, but HR didn't like having H1B's on the payroll so they pushed to kick him out when they got the opportunity.

Similarly, I've seen other bizarre actions such as hiring a bunch of people in one month and then laying off most of them the next month.

You may be right. He says he was the only African/Black person at the firm of approximately 150 consultants.