485 NOID ,212 (d)(3)(a/b) waiver

U

user0421

Registered Users (C)
Hi,

I applied for my 485 in Sep 2001. I got a NOID from INS saying that i was out of status for more than 6 months prior to applying my 485 and i had left the country and come back during AOS, thus making me ineligible for 245i life act.

This was what happened.

Upon departing the U.S. in October 2000, I turned in my I-94 card for my prior employer. When I returned to the U.S. on November , I presented to the INS Inspector at the airport my passport, which had an H-1B visa for my prior employer, valid until August 2002. I also presented my approval notice for my new employer, (which had recently acquired my old company) that had my new I-94 card attached to it. The INS Inspector briefly glanced at the approval notice, took the passport and gave me another I-94 card with the name of the old employer on it with the end date of Feb 2001 (my PP expiry date a). The Inspector let me keep the new company I-94 card which had Aug 2002 expiry date and wrote the wrong employer name(old) on the other I-94 card.

I came back and asked my lawyer. She told me that since the inspector has let me keep the I-94 with the new H1-b. I have two facially valid I-94 and i don't need to apply for my I-94 extension and she is still saying that i was always in status.

Now i have asked several lawyers. They told me my lawyer was wrong. Now i am facing a 3 year bar from entering US.
I am currently looking for a lawyer who has processed a 212(d)(3) waiver for an H1-b from the New delhi Consulate.

Any help appreciated.

Thanks
 
Please clarify

Your post is confusing...Are you saying INS sent the NOID because you went our of US recently and now you are not able to reenter.

Also when you received the new H1-B for the new employer did you have the same I-94 number on it. If INS does not provide a I-94 it means you need to go back to your consulate in the home country and get your H1-B stamped. INS does this for Out of status cases. But seems from your post that you did get a I-94 with you new H1. I think the whole issue might be triggered by the fact that at the Port of entry the INS inspector entered your old employers name which means you are authorized to work for your old employer and not the new employer.

From what I can interpret based on the dates you posted since your I-94 expired on Feb 2001 for your old employer you have been out of status ever since.

Note : What I Stated above is my opinion only, talk to an attorney for legal advice.
 
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I am in the US right now. I got the I-94 with the H1-B. Also, one is not out of status when 485 is applied.


INS issued the NOID while deciding on my 485 in Feb. I need to leave the country when they deny my application.

The only way for me to re-enter US is to get a new H1-B, go to india and apply for waiver (212(d)(3)). Once the waiver is grnated, i can reenter US otherwise i have to wait for 3 years.

Has anyone gone through this process?
 
I am sorry to hear that. So was INS decision based on the fact that you had an expired I-94 since Feb 2001 and applied for I-485 only in SEp 2001. Did you leave the country when your I-485 was pending without valid AP.
 
user 0421 details required

did you submit a copy of your new I-94 that was in the approval notice of the new employer with the I-485 documents to the INS?

That new I-94 should show that your stay is valid upto aug 2002. how are you out of status then?

even when i entered the country last, the officer put my previous employer name and validity period. i had presented the new approval notice to the officer. they don't pay attention to the details. however, from what i have read per INS memo of 1997 you can travel with a previous employer's visa till it is valid.

did you get your passport revalidated at St Louis with the new approval notice?

can you adjust status if your time gap between I-94 expiry date and I-485 filing date is less than 180 days?

Does INS automatically allow you to use 245(i) at the time of deciding your application?

please post. thanks.
 
The question which is a controlling I-94.
The last issued I-94 is the valid one. So if you have two I-94s , the one with latest issue date is teh controlling one and not with the latest expiry date.

The 245(i) has lot of criteria. Check some of the websites for that. The bottom line is even if you are eligible based on the dates, of Labor filing, still u loose it if you travel outside the country after applying 485, even with the Advance parole.

BTW, do u gusy know or sugegst any lawyer who can do the 212(d)(3) waiver.
 
user0421

i revalidated the visa on the passport with St Louis center. they issued a new stamp on the passport which has the validity of the new H1B approval notice. So I guess the I-94 of the approval notice holds good.

question is will INS mention in the letter that you are eligible to use 245i? when they issue NOID if you are eligible.

i haven't travelled outside the country after filing 485 either.

let me know user0421 how you are proceeding on your case. thanks.
 
Technically speaking, you cannot have more than two I-94s after entering the country except the situation where your new H1 is approved along with new I-94. If you leave the country with your new H1 and new I-94, you need to submit both I-94s, one stapled to passport and new I-94 along with H1 to the airline agent before you leave. Once you are done with that, when you enter you will show your new H1 and get the I-94 based on new H1 validity period. You have to tell that to immigration officer so that she does not give H1 based on your visa but on your new H1 expiry date. I have done the same way.
 
Originally posted by Coolboy
.... when you enter you will show your new H1 and get the I-94 based on new H1 validity period. You have to tell that to immigration officer so that she does not give H1 based on your visa but on your new H1 expiry date. I have done the same way.
Click to expand...

This is correct. Keywords are New H1 expiry date. This situation could have been avoided at POE.

Many lawyers advise their 245(i) clients that they not leave the country, even if one has a valid AP, because of the sensitivity and complexity of the protection granted in 245(i).
 
The situation could have been avoided, had i know the complexities.
Actually, my I-94 was issued for lesser duration because of my passport expiry date. Anyways, i asked my lawyer after the entry, for I-94 renewal. She told me i don't need it and also, she told me that i am always in status.

Unfortunately, that is wrong. Now i am facing this situation.
Actually i showed the iNS agent my new H1-B with attached I-94. In that case, he should have taken that I-94 while issuing the new one.

Also, i asked an INS agent both the I-94 at the Canada border on a later date. He also told me that i am OK.

Anyways, let me know if you can suggest good lawyers for processing through New Delhi Consulate.

Thanks
 
user0421

did you travel during your Adj. of Status too? - yes, i read the extract of 245i and it says you should not travel during the AOS/485 stage even on AP to make use of the law.

If you had not travelled during that period, you can take advantage of the law.

I don't think that your travel on H1 and the the officer issuing I-94 based on the previous H1 would cause so much problem. Also, the time gap between the I-94 expiration and 485 filing was more than 180 days - which means that you have to use 245(i).

can you tell us exactly what INS mentioned on their letter to you?

Also, did you revalidate your passport with the new visa after coming here.

Let us know, thanks.
 
user0421 - please post details

user0421,
please post the exact words of the NOID that INS sent you.

Did they say explicitly that you cannot use 245(i) in their letter?

did you get an RFE before that and what are the details.

thanks.
 
USER0401

Hi

Please Put the exact wording of the ins letter. I also got an RFE for the same you mentioned. I thought that is not a big mistake and lawyer replied with the same I94. I want to know exactly what is meen by NOID.

Gan.
 
gan0701, NOID - Notice Of Intent to Deny.

user0421, please read my response to gan0701's other post regarding I-94 technicalities...
 
245i

my understanding if you out of status more than 180 days, if you leave the country, you can return after three years bar, and make you not qulify for 245i. if u don't leave during I-485, even u out of status more than 180 days, you still eligiable for AOS.

this is only for your reference
 
yes that is correct

should not leave during AOS even if more than 180 days to qualify under 245i.
 
Gan,

Did u reply along with the 245i application ie 485 A. If you did not travel after applying I-485, i think you are covered by paying $1000 fine.

Please send me your details too. The problem with me is that i left and renetered twice after applying my 485. So i cannot qualify for 245i.

Did your lawyer file the 245i application?
 
user0421 - please post your details

user0421 - could you please post the exact statement that INS sent in your NOID.

it will help us understand how INS responds to such cases.

thanks and wish you good luck.
 
Hi USER0421,

I didn't send 245i with 1000 dollars fine. My lawyer replied stating that, the officer made a mistake while writing the date on I-94.
I never gone out of the country after that..
Please tell me if you have any more details about this.

Thanks,
Gan.
 
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