245k - 180 days cummulative or resetable?

E

eskimohere

Registered Users (C)
We are applying to I485 but my husband has been working without authorization since Jan 04. He has been in/out of the country many times. And he just quit his job last month.
We spoke to our lawyers and they said we could use the 245k provision, that he could leave the country before applying and then the 180 day rule would reset.. they said that the law is not very clear so there is a chance USCIS could say the 180 days are cummulative.... that they do not define well what is a lawful entry.
What do you guys think? We don't have really other options. Well we have the consular processing but that is a one shot without the lawyers help.
What does "since last lawful entry" means?

Thanks :confused:
 
eskimohere said:
We spoke to our lawyers and they said we could use the 245k provision, that he could leave the country before applying and then the 180 day rule would reset.. they said that the law is not very clear so there is a chance USCIS could say the 180 days are cummulative.... that they do not define well what is a lawful entry.
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If your attorneys are confused as to what is a "lawful entry" then you should probably consider getting new ones. A lawful entry is when your husband enters the US at a POE using a visa. Basically, he'll need to leave the US, get a new H4 visa at the consulate, and enter using it.

And then NOT work until his EAD is in hand. ;)
 
TheRealCanadian said:
A lawful entry is when your husband enters the US at a POE using a visa. Basically, he'll need to leave the US, get a new H4 visa at the consulate, and enter using it.
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Does he needs to mention his "working without authorization" period at the consulate? How does it work?
 
TheRealCanadian said:
Basically, he'll need to leave the US, get a new H4 visa at the consulate, and enter using it. And then NOT work until his EAD is in hand. ;)
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Can he leave and reenter with the H4 he currently has? This is what our attorney suggested.


:confused:
 
They are my employer's attorneys, Fragomen. :mad:

I will talk to them today. Our H1B/H4 are about to expire anyway, so will go then to Canada as soon as I get my extension receipt notice. They are doing my extension premium processing but said that they couldn't do his because of the work w/o authorization. He would just have to go to the consulate and get at stamp. Does that sound correct?

Thanks. ;)
 
unitednations said:
To apply for adjustment of status one condition among a few others is that a person could not have worked without authroization of 180 days from their last entry.

USCIS has clarified that to use provision of 245k it resets after you leave and re-enter.

Therefore, if you work without authroization for 160 days, leave and then re-enter then you get a clean slate. It is not cumulative if you leave and re-enter.

However, if you work without authroization for 100 days then get authroization but then work again without autorizaiton for 90 days then the total would have been 190 days and you would have serious problems.

Reason Fragomen is telling your husband to go out of usa and re-enter is that to extend h-4; you could not have worked without authorization which is what he did.

The question on the I-539 is did you violate the visa since last entry. By leaving and re-entering he would be able to answer "no" that he didn't violate since last entry.
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Hi Unitednations,

One more clarification. If a person has violated H visa status for more then a year in past but recently has entered US legally and has not done any status violation since his last entery to US and files I-485.

Will there be any issue in I-485 approval because of his past H violation for more then a year but no violation since his last entry?

thank you very much for clarification....
 
for UnitedNations

Hello UN,
could you clear some space in your private msgs so that we can send you pvt msgs, I tried to send you one but your mail box was full, so I sent it at your gmail address.
Thanks
 
unitednations said:
what was the violation?
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Hi Unitednations,

Here is what happened.
My employer filled an extension(in 2004) while I was out of US but got an approval after I came back to US. I tried to get visa stamp while I was in US by sending approved I-797 to St. Louis (At that time, visa stamping within US was available) but they issued 221g without any specific reason and asked me to go get stamp at any US consulate abroad. Since then I have not stamped yet. About few months back(in 2006) I received 7th year (for 3 year) of extension based on approved I-140. I am planning to visit Canada to stamp my H1 in next couple of months.

I am not sure, was my extension in 2004 was an error by USCIS as my extension was applied while I was out of US. If it was an error by USCIS then I feel I have violated H visa.

That's why I would like to know by going out of US and re-entering again with valid H visa will give me a clean slat to start my I-485 even though later in future USCIS declares 2004 approval was an error on part of USCIS?

Thanks for reading and replying...
 
unitednations said:
If you had an I-94 card then everything will be ok.

What was the administrative process for?

If an I-94 card was issued an error then uscis has to formally revoke the I-94 or an immigration judge has to revoke it.
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Thanks Unitednations,

They had issued an I-94 along with I-797 approval notice at the bottme in 2004 extension as well as in 2006 (recent) extension.

I am not sure what was the admin process for but I guess till date I have not been finger printed might be a reason or just a random check or may be anything. I did not inquired and on 221g they have not specified any reason.

Since today, USCIS/immigration judge has not revoked my any I-94. But in case if USCIS/immigration judge formally revokes my earlier(2004) I-94 and then If I re-enter with valid H1 stamp on 2006 extension and then if I file I-485, Will my previous violation be cleared for I-485 as I re-entered with a valid visa and has never violated H visa status since my last entry to US?

Thanks for givig me so much of your precious time... I appreciate it.
 
unitednations said:
To apply for adjustment of status one condition among a few others is that a person could not have worked without authroization of 180 days from their last entry.

USCIS has clarified that to use provision of 245k it resets after you leave and re-enter.

Therefore, if you work without authroization for 160 days, leave and then re-enter then you get a clean slate. It is not cumulative if you leave and re-enter.

However, if you work without authroization for 100 days then get authroization but then work again without autorizaiton for 90 days then the total would have been 190 days and you would have serious problems.

Reason Fragomen is telling your husband to go out of usa and re-enter is that to extend h-4; you could not have worked without authorization which is what he did.

The question on the I-539 is did you violate the visa since last entry. By leaving and re-entering he would be able to answer "no" that he didn't violate since last entry.
Click to expand...

What they actually said was for him to leave and reenter and then submit the I-485 with his new I-94 card. Then after we receive my approval notice for my H1-B extension that he could go to a consulate abroad and get his new H4 without having to submit a I-539. Does that sound correct? What RealCanadian is saying is that before submitting the I-485 he needs to get a new H4. Therefore he will need to leave twice right?

I sent Fragomen an email with these questions. Let's see what they respond.

Thanks
 
unitednations said:
To apply for adjustment of status one condition among a few others is that a person could not have worked without authroization of 180 days from their last entry.

USCIS has clarified that to use provision of 245k it resets after you leave and re-enter.

Therefore, if you work without authroization for 160 days, leave and then re-enter then you get a clean slate. It is not cumulative if you leave and re-enter.

However, if you work without authroization for 100 days then get authroization but then work again without autorizaiton for 90 days then the total would have been 190 days and you would have serious problems.

Reason Fragomen is telling your husband to go out of usa and re-enter is that to extend h-4; you could not have worked without authorization which is what he did.

The question on the I-539 is did you violate the visa since last entry. By leaving and re-entering he would be able to answer "no" that he didn't violate since last entry.
Click to expand...

Since his last entry he has been working w/o authorization for more than 180 days. So what you are saying is that if he leaves/reenters it would reset but with a new H4?
 
RealCanadian/UnitedNations please help

eskimohere said:
What they actually said was for him to leave and reenter and then submit the I-485 with his new I-94 card. Then after we receive my approval notice for my H1-B extension that he could go to a consulate abroad and get his new H4 without having to submit a I-539. Does that sound correct? What RealCanadian is saying is that before submitting the I-485 he needs to get a new H4. Therefore he will need to leave twice right?

I sent Fragomen an email with these questions. Let's see what they respond.

Thanks
Click to expand...

I saw your responses in this forum very useful and I really appreciate if you can help me.

I have applied my 4th EAD at NSC and AP at VSC. It's my attorny's mistake he sent EAD to NSC instead of VSC (where my 485 in pending). AP is approved and EAD got transferred to VSC at last. My current EAD expires in a week and my attorny says I am covered under 245(k) and continue to work. My question is who is eligible for 245(s)?
1. I am EB3/ never worked illegally
2. Entry to US prior to filing my 485 was on H1
3. changed job after 140 approval+180 days (AC21)
4. Travelled to India on Advance Parole after filing 485 and continue to work on EAD
5. Since my most recent entry was using AP, Am I still eligible to use 245(k)?
 
RealCanadian/UnitedNations please help

I saw your responses in this forum very useful and I really appreciate if you can help me.

I have applied my 4th EAD at NSC and AP at VSC. It's my attorny's mistake he sent EAD to NSC instead of VSC (where my 485 in pending). AP is approved and EAD got transferred to VSC at last. My current EAD expires in a week and my attorny says I am covered under 245(k) and continue to work. My question is who is eligible for 245(s)?
1. I am EB3/ never worked illegally
2. Entry to US prior to filing my 485 was on H1
3. changed job after 140 approval+180 days (AC21)
4. Travelled to India on Advance Parole after filing 485 and continue to work on EAD
5. Since my most recent entry was using AP, Am I still eligible to use 245(k)?
 
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