485 denied - since when 180 day period starts

[physionj]

My 140 was denied few months back and now 485 is denied. I am out of status since I don't have any other valid non-immigrant visa.

I have a questions to all Gurus here. Since when my 180 days limit start?
Here are the events on time scale:
1) Entered US on H4 two years back.
2) Last year applied for 485/140 and got EAD.
3) Started working on EAD last year.
4) Visited home country in Dec 2006 and entered US in jan 2007 using travel document (AP). Got new I -94 while entering. I-94 is valid till jan 2008. I-94 says paroled till Jan 2008.
5) I140 denied in Jan 2007
6) March 1st 2007 - old H4 expired (as on my passport).
7) I485 denied in may 2007.

Now, my question is my 180 days period starts from march 1st 2007 or from May 2007 when my 485 was denied?
I am getting conflicting opinions from lawyers. Most says 180 day period starts from May (485 denial) since I was paroled because of my travel document and pending 485.
But some say, it starts from March 1st since after 485 denial you go back to your previous non-immigrant visa status and if it is invalid, your 180 days period starts from that point.
What should I do? Please advice!

 

[great guru]

You lost your status at the end of H4 expiry. I 485 or AP does not give you any status.

Now you are out of status. 180 days started the expiry of your I 94 which comes with your H4. (H4 visa status validity)

My 140 was denied few months back and now 485 is denied. I am out of status since I don't have any other valid non-immigrant visa.

I have a questions to all Gurus here. Since when my 180 days limit start?
Here are the events on time scale:
1) Entered US on H4 two years back.
2) Last year applied for 485/140 and got EAD.
3) Started working on EAD last year.
4) Visited home country in Dec 2006 and entered US in jan 2007 using travel document (AP). Got new I -94 while entering. I-94 is valid till jan 2008. I-94 says paroled till Jan 2008.
5) I140 denied in Jan 2007
6) March 1st 2007 - old H4 expired (as on my passport).
7) I485 denied in may 2007.

Now, my question is my 180 days period starts from march 1st 2007 or from May 2007 when my 485 was denied?
I am getting conflicting opinions from lawyers. Most says 180 day period starts from May (485 denial) since I was paroled because of my travel document and pending 485.
But some say, it starts from March 1st since after 485 denial you go back to your previous non-immigrant visa status and if it is invalid, your 180 days period starts from that point.
What should I do? Please advice!

 

[physionj]

Thanks great guru. I understand what you are saying. However, I am still not clear on one thing. When I entered two years back, I got I-94 with my H4. When I left country last year in Dec 2006, I submitted that I-94.
Later I came back in Jan with AP and I got a new I-94 with a date of Jan 2008. So you are saying, even if I got a new I-94, my old I-94 (which is not with me anymore) detects my status date? In other words March 1st 2007 (my H4 expiration date and old I-94 date) is the time my out-of-status 180 days period started?
Can you please comment and clarify again? Thanks again.

 

[physionj]

Also please note that I started using my EAD last year. I was told that my H4 becomes invalid once I start using EAD.

 

[baby_mde]

You lost your status at the end of H4 expiry. I 485 or AP does not give you any status.

Now you are out of status. 180 days started the expiry of your I 94 which comes with your H4. (H4 visa status validity)

great guru, you are wrong. 485 does give you status i,e. AOS pendig status, which is an immigrant visa status. If fact you can stay in valid status as long as your 485 is pending, you do not have EAD or AP. You need EAD to work.

 

[great guru]

My dear , just filing I 485 does not give you any status. Pending is not a status.

Unless I 485 is approved ,you do not have any status unless your back up H1 is valid.

great guru, you are wrong. 485 does give you status i,e. AOS pendig status, which is an immigrant visa status. If fact you can stay in valid status as long as your 485 is pending, you do not have EAD or AP. You need EAD to work.

 

[baby_mde]

My dear , just filing I 485 does not give you any status. Pending is not a status.

Unless I 485 is approved ,you do not have any status unless your back up H1 is valid.

Who told you? I do not have any H1 or L1 or H4 visa. My 485 is pending. In fact I have used AP in Feb 2007 to enter into US. One more thing, NH State accepts 485 receipt to get the Driver License. 485 is pending means AOS status under attorney general of united states.

If you don't know please keep quit and do not post wrong information.

 

[GotPR?]

Strictly speaking, pending AOS is not so called status. It is just authorized stay which allows ones to stay in the US.

I think 180 days counting starts in May 2007 upon I485 denial.

 

[deshal]

Strictly speaking, pending AOS is not so called status. It is just authorized stay which allows ones to stay in the US.

I think 180 days counting starts in May 2007 upon I485 denial.

I agree. I-485 makes your stay legal as long as it is pending. my understading is that the 180 day starts from the day I-485 was denied if you dont have any other valid non immigrant status. thats what the lawyers say. and pls people dont post if you are not sure. a wrong comment can cause somebody a lot of pain.

 

[great guru]

If your I 485 is denied, it happen to several guys even after 2 years pending , what will you do?
Give me your wrong info on that.

Who told you? I do not have any H1 or L1 or H4 visa. My 485 is pending. In fact I have used AP in Feb 2007 to enter into US. One more thing, NH State accepts 485 receipt to get the Driver License. 485 is pending means AOS status under attorney general of united states.

If you don't know please keep quit and do not post wrong information.

 

[ajasha]

My dear , just filing I 485 does not give you any status. Pending is not a status.

Unless I 485 is approved ,you do not have any status unless your back up H1 is valid.

Pending 485 is a legal status. You don't need anything as back up as long as you have some status on the date you applied. But if your 485 is denied then you become out of status on the date of denial. But the case in discussion has some contradictory info. If 140 is denied in jan 2007 then 485 should have been automatically denied sametime. He/she may be out of status since Jan 2007 because 140 was denied at that time.

 

[NYPT]

hi physionj! can i get your email add? just need to ask you something. thank you

 

[EricS]

IMHO, you are out of status since your 140 was denied (Jan 2007). Your H4 became invalid once you started using your EAD. Your 485 will also be considered deneid since Jan 2007, the fact that you received the 485 denial notice in May does not mean it was valid till May.

Did your employer apply MTR/Appeal on your 140? If yes then that may be one of the reason it took them so long to send the 485 denial notice.
If no, can I ask why you didn't apply for MTR/appeal.

Just one more question, you were on H4 and directly applied 140/485... Did you use a substitute LC or are in a clasification like EB2-NIW where you do not need LC?

If you don't mind, I would like to suggest to you and other who are reading this thread that while asking question in the forum, please provide as much relative detail as possible. This makes it easier to give a more meaningful reply.

 

[physionj]

EricS,
Thanks to you and everyone else on the thread.
I applied under schedule A and hence I did not required LC.
My employer did apply for MTR. I got 485 denial almost 5 months after 140 denial. It could be due to the reasons mentioned by you.

Looking at the thread, it appears that different people/experts have different views/interpretations on this issue. It seems that even different lawyers have different views.

 

[great guru]

I am telling you, the case in discussion, his I 140 was rejected but his I 485 is still pending,

You are mad or what? You are telling his I 485 pending is a status.
Which US attorney general wrote to you?
Once his underlying immigration petition is rejected (i 140 or I 130) , I 485 does not have any status at all. This discussion is for only his particular case.

Who told you?


I do not have any H1 or L1 or H4 visa. My 485 is pending. In fact I have used AP in Feb 2007 to enter into US. One more thing, NH State accepts 485 receipt to get the Driver License. 485 is pending means AOS status under attorney general of united states.

If you don't know please keep quit and do not post wrong information.

 

[physionj]

ok.
So I am out of status since H4 expiration (March 2007) or since my I140 was rejected in Jan 2007?

My last I-94 that I got was due to my AP (I guess). Actually they first wrote H4-March 2007 on I-94 and then they also wrote paroled till Jan 2008 for adjustment of status (on my I-94). so I am guessing my entry was with AP.

 

[physionj]

Also how hard is to get H4 for me in my home country now?
Does anyone has experience with it?

If I get H4 and get back here and then later if my I140 is opened, what happens? Can I continue my GC application in that case?

How long does it take for decision on MTR for 140? Mine is pending for long time now (without any LUD).

 

[great guru]

Your case became complicated due to concurrent filing of I 140/I 485/EAD/AP.

But underlying immigration petition is I 140, to file an I 140 (labor based) or I 130 (Family based) you no need to be present in US at all. Then how will the status come in to play for I 140. (I 140 just establish your eligibilty for an immigration applicant)

You should be at least in status until the approval of I 140 if your date is current , then apply I 485.

Your AP/EAD was issued hoping your I 485 is approvable, but your case is not approvable.

Do you know, why your I 140 was rejected? Did your attorney tell you the reason? If the reason for rejection is strong, your MTR is not going to help you? Again MTR is not going to give you any staus. You should have kept your status H4 intact, to encounter these situations. There is no set time by USCIS to review any MTR unless your case is very strong and USCIS is over looked it.


So, you do not have any status after H4 expiry because your I 140 rejected and ultimately I 485 denied.

Instead of counting dates leave US unless you have any other alternative arrangements.

Also how hard is to get H4 for me in my home country now?
Does anyone has experience with it?

If I get H4 and get back here and then later if my I140 is opened, what happens? Can I continue my GC application in that case?

How long does it take for decision on MTR for 140? Mine is pending for long time now (without any LUD).

 

[physionj]

Great Guru and other experts,
Since all the categories are current now, will it be advisable to apply for new I140/485/EAD now? Do we need to withdraw old I140 for that?
Can you please advice?

 

[EricS]

Great Guru and other experts,
Since all the categories are current now, will it be advisable to apply for new I140/485/EAD now? Do we need to withdraw old I140 for that?
Can you please advice?

You can apply for new 140/485 and withdraw previously appealed 140. You do not have to withdraw that, but it is better to withdraw. Try to overcome the shortcomings in your previous 140. You may also get another RFE this time to show that your stay in the US was legal since the denial of your 140/485.

Best of luck!