485 RFE: Employed but out of status for 4 months

S

SudP

Registered Users (C)
Hi,

I received an RFE for my 485. It made me worry a little specially since after receiving the RFE my lawyer is taking over a week to come up for a plan.

The RFE is regarding me being out of status. My H1B had expired on 04/01/2001. I did not notice it till my I-140 got approved. Then when my lawyer called me in to file the I-485, I realized that my H1B had expired and we applied for it. I filed for my I-485, I-765 and H1B right away in 07/2001.
I got my Approval notice for H1B in August (Notice date 08/23/2001) itself. I went to India and got it stamped in November. also I got my EAD in November too. that means I was out of status between that period.
During that out of status gap period I was employed and paying taxes too.

The RFE says

" Please submit evidence that the applicant maintained a lawful nonimmigrant status from 04/01 to 07/01. your evidence should include a copy of the form I-797 approval notices for all extensions and change of status , a copy of an I-94 (both sides), stamped passport or other legal entry documents."


Is there a way out to fill the gap and get the green card process rolling.

I will appreciate any help.

Thanks,
SudP
 
You were out of status and BCIS has noticed the fact. This is no big deal- as typically BCIS does not make a big issue with something like this. There is procedure to pay $1000 penalty and file under 245(i) or (k). The lawyer should know that.
HTH
 
Sudp, what plan is your attorney coming up ?
i suggest you read 245(i) maybe that will save you.

I Hope for you that there is someone else on the forum who has gone thru this situation and can be of better help to u.

all the best and please post your experiences here for the benefit of others.
 
You can use 245(k) since you worked illegally for less than 6 months

I have no clue why TSC issues such a RFE since we all are protected upto 180 days by 245(k) automatically. Waste of time or what ?? Very strange why your attorney couldn't see the simplest solution of this TSC mess.
 
Another argument that your attorney can come up with is that you DID go out of the country and came back with a new Visa. If I am not wrong your status since last entry is what actually matters. Your attorney should make it a point in his argument.
 
Another thought

You actually worked illegally from April 02, 2001 through Nov. 2001 which is more than 180 days. You might need to use 245(i) paying $1000 fine. Jaxen and other gurus please comment on this.
 
Originally posted by WaitinginQ
Another argument that your attorney can come up with is that you DID go out of the country and came back with a new Visa. If I am not wrong your status since last entry is what actually matters. Your attorney should make it a point in his argument.
Click to expand...


WaitinginQ, i think that is not right.
when you go out of the country and come back with new visa, you
have to fill in a questionaire.
I can't remember but i have been told it has questions like -
have u been in jail or have you been out of status etc.. etc..
at that time, Sudp must have said Yes and the new visa must
have been granted on basis of that.

When you apply for GC, it is not just your status since last entry matters but you have to prove you have been in Status all the time. If not there are few provisions like 245(i).

I agree with U2, your attorney shd be knowledgeable enuff abt 245(i) or 245(k) and shd discuss that with you.
Hence I suggested Sudp, you shd be proactive, read abt 245(i)
while his attorney is taking a week for coming up with a plan.
 
Originally posted by goastros
When you apply for GC, it is not just your status since last entry matters but you have to prove you have been in Status all the time. If not there are few provisions like 245(i).
Click to expand...

That's one question where I've never seen a definitive answer one way or another - for 245i and 245k, does a legal re-entry reset the clock, or does any time out of status in the past count?

If it was less than 180 days, this would be a fun academic discussion since we'd just claim relief under 245k and be done with it. It looks like we may have been out of status for >180 days (from H-1B expiry until re-entry) but I don't know.

The RFE language is critical - it seems to focus on a 3 month window between 04/01 and 07/01. I am not an attorney, but my first though would be to admit you were out of status during that time and simply claim 245k relief. If they don't think you're eligible, you'll get a Notice of Intent to Deny and then you send in the I-485A and the $1000 and you're clean.

In fact, the fact that they did NOT issue an NOID now, but just an RFE, may imply that they do not think you were out of status long enough to require 245i. The cost of 245i is sufficiently high that you may want to try 245k relief and see what happens.
 
For 245(k) INS has agreed that the 180 days applies to only days after the alien's last entry to the US. So the legal entry does reset the clock. This could very well be the reason like RealC pointed out that an RFE was issues instead of a NOID.
 
I think this is a very vague area and needs some prefessional inputs. I am sure, I had read somewhere that a re-entry with a valid visa does reset your clock. But then, this is INS every adjudicator has his own interpretation of the law.
 
Out of status.

Hi, I should be this world's expert on being out of status. When Clinton first signed the bill into law in 1996, I was a second year resident in a Universit yhospital,with a 1 year old and a pregnant wife. I sat it out for 6 months, while a moron lawyer called Jan Pederson forgot about my case. Finally in 3/1997 a law firm in Buffalo-Serotte/reich, took us all across the border, and brought us back in with a "visa waiver" and new i-94 cards. He used the "extraordinary exceptional circumstances" clause to get us the visa waiver. I very clearly remember that the key words were to leave the country and reenter with a new I-94. I busted my wallet for $35000/- in this period and came out sadder and wiser. In my case the University office forgot to send in my J-1 papers for renewal.The form is called a "visa waiver" form.

In your case it sounds like you left and came back into the country. I would get letters from your Senator and Employer vouching for your reputation as a good human being.

Contact Serotte and Reich in Buffalo for their opinion.

All the best.
 
Another thing of interest in this RFE is that INS does not seem to be concerned much about the "unauthorized employment", but they are more particular about the "expiry of the H1 visa". Even though you were employed without authorization for more than six months, they are not making that an issue, but your presence in US without a visa for four months seems to be of concern to them. So looks like in their opinion you were out-of-status for only 4 months. My guess is you are on the safer side and if your attorney can put forth a valid argument you should be celebrating pretty soon.
 
Sudp,

When your H1 was approved, did u get a new I94? Or did it say that you need to go out of the country and apply for a visa at a consulate?

If your status was extended then you were out of status for less than 6 months. But if they just approved your H1 and not the extension then you were out of status for more than 6 months.


Dinnu
 
This is different

Sudp,

The reason you got an RFE although you went to India afterwords and stamped your passport is that you applied for I-485 before that. You applied for your I-485 on 7/01 that is when you were out of status for 3 months. Have you applied for I-485 after you came back, I would think it would be a totally different story. That is my analysis and you can verify it with your lawyer.


Good luck.

Spartakus
 
I want to Thank you guys for helping me out.

Yes I asked my lawyer and she said that since i applied for I-485 my status changed to adjustment of status from out of status. Hence they want an account of the days between April 2001 and August 2001 ( as the I-485 receipt date is in August).

The New H1 approval notice that i received for was 3 years and did not carry and I-94 with it. It was to be used to get stamped at the Consulate in India. The notice date for the H1 was in August too as mentioned in the Post.

I did go through the 245(i) and (k) on the web site of USCIS. got a lot of confusing language and jumps within the document. after the whole episode i'm was dizzy with where do i exaactly fall and which one is better (i) or (k). also somewhere it mentions that you don't have to pay the fine for (k) for $1000 for (i). does anyone know exactly what is the difference between them [(k) and (i)].

Thanks for the help folks let me know if you need more details. I will keep posted as the days go by.

Thanks SudP
 
245(i) : This section of the law provides persons who were unlawfully present in the US who had either labor certifications or visa petitions submitted on their behalf to the Labor Department or to the INS on or before April 2001 and were physically present here on Dec 21, 2000, if they are not apprehended by the INS and forced to depart the U.S., adjust status to permanent residence in the U.S. upon payment of a $1000 fine and compliance with other legal requirements.

Some cases were you need 245 (i) are

Stayed in the U.S. longer than allowed by Immigration
Failed to continuously maintain a lawful status since your entry into the US.
Are seeking a work-related visa and are out of status at the time of filing the application to adjust status (Form I-485).
Worked in the U.S. while being an “unauthorized alien.”


245(k) : This section of the law alows an intending immigrant to apply for AOS under section 245 (a) WITHOUT payment of a fine if

1. They qualify under certain employment based categories and
2. Have not been out-of-status for an aggregate period of 180 days after the alien's last admission to the US.

Example: If an alien is admitted to the US in legal status after being in the US in illegal status for LESS THAN 180 days, he may, if he qualifies for permanent residence through one of the qualifying employment based categories, and if he has NOT been
out of status for 180 days or more since his last admission, adjust status under section 245(k).

SudP now just plugin your situation to the above example and you will see why you are a perfect candidate for 245(k).

Other gurus can comment if they see anything wrong with the above. I think it is pretty simple and straightforward based on the timelines and dates that SudP has reported.
 
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