485 Denied.. Help

sfaizullah

Registered Users (C)
#1
My fiend submitted in Oct 2007 R1 Renewal Application Pending as it took long to hear back, his employer applied for H1 in 2009 which was approve with effective date of Oct 2009. After H1 approval on Jul 23, 2009 he got denial of R1. He started the work. Applied for labor got approved, 140 got approved. Applied for 485 which was recently denied. The reasons sited were that he was out of status from Oct 2007 till Oct 2009, basically USCIS interpret that when R1 was denied my friend was out of status from date of request to extend that is Oct 2007 and not from the date (23 Jul 2009) when the actual denial happened. Is this correct interpretation? If one is waiting, isn't that period of wait counted as in status? Anyone saw this kind of situation before> Any court decisions on this situation?

Dear Mr. Khanna, what do you think?

Time is of essence as he has to apply for reconsideration in less than a week.

Best Regards,
 

newacct

Well-Known Member
#2
Yes, he was "out of status". "Out of status" just means the person didn't have a status at that time; it's normal for people doing Extension of Status, Change of Status, or Adjustment of Status to be "out of status" for a time.

I think the denial is right. The reason is that INA 245(c)(2) says that for non-immediate-relative categories, one is not eligible to do Adjustment of Status if one hasn't continuously maintained "lawful status" since one entered. (Or for employment-based categories, under INA 245(k), one is allowed to have no more than 180 days of not "lawful status" since one entered.) A pending EOS, COS, or AOS application does not by itself constitute "lawful status" for the purposes of this section. But if the EOS/COS was later approved, the time it was pending will be retroactively considered to be "lawful status" for the purposes of this section; his wasn't approved. See AFM 23.5(d)(4)(C)(ii).

He can solve this problem by leaving the U.S. and re-entering. He should not have any "unlawful presence" because one does not accrue "unlawful presence" when a timely-filed EOS/COS is pending, so he should not have any bans on leaving. Once he re-enters, he will be eligible for Adjustment of Status because he will then have maintained "lawful status" since he entered.
 

sfaizullah

Registered Users (C)
#3
Yes, he was "out of status". "Out of status" just means the person didn't have a status at that time; it's normal for people doing Extension of Status, Change of Status, or Adjustment of Status to be "out of status" for a time.

I think the denial is right. The reason is that INA 245(c)(2) says that for non-immediate-relative categories, one is not eligible to do Adjustment of Status if one hasn't continuously maintained "lawful status" since one entered. (Or for employment-based categories, under INA 245(k), one is allowed to have no more than 180 days of not "lawful status" since one entered.) A pending EOS, COS, or AOS application does not by itself constitute "lawful status" for the purposes of this section. But if the EOS/COS was later approved, the time it was pending will be retroactively considered to be "lawful status" for the purposes of this section; his wasn't approved. See AFM 23.5(d)(4)(C)(ii).

He can solve this problem by leaving the U.S. and re-entering. He should not have any "unlawful presence" because one does not accrue "unlawful presence" when a timely-filed EOS/COS is pending, so he should not have any bans on leaving. Once he re-enters, he will be eligible for Adjustment of Status because he will then have maintained "lawful status" since he entered.

Thanks! For how long should he leave? Few days, weeks, months, or more?

Can he do consular processing in a third country as he expects troubles in his own?

Best Regards,
Safi
 

newacct

Well-Known Member
#4
Thanks! For how long should he leave? Few days, weeks, months, or more?

Can he do consular processing in a third country as he expects troubles in his own?

Best Regards,
Safi
He doesn't need to do consular processing. He can just leave, come back on an H1b visa, and do AOS. He doesn't have to be gone for any set amount of time. I'm assuming that he doesn't have an H1b visa now, so he just needs to be gone long enough to get an H1b visa, in any country.
 
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