Am I out of status?

S

s_jojo

Registered Users (C)
I got laid off on Jan 10, 2005 and got a new job on Feb 28, 2005. Before I was laid off, I was a H1B holder and I did a H1B transfer after I got the new job(the transfer application is still pending now).

Before I was liad off, my 485 has been pending for about 2 years and my spouse is the primary applicant. Was I considered out of status from Jan 10 - Feb 28? Or I was in AOS status? I am having the 485 interview next month and very concerned about this issue. Will my 485 be denied because of this gap?

Anyone has any comments? Thank you.
 
You may have lost your H1 status by a very strict definition of the law, and your transfer may be rejected (unlikely, but this is by very strict definition).

But you are fine because you have dual status. H1 and AOS pending. Even if you lost H1, AOS pending will keep you in status. The very fact that 485 is pending is required and sufficient for you to qualify for AOS pending status, with no other prerequisites. Do you have an EAD? If yes, then you're totally fine.

Finally, even if you went out of status, as long as it's less than 180 days, you can still keep your 485 alive automatically.


~T
 
I dont think you were out of status .because

a) your 485 was pending so ur status was AOS pending
b) secondly someone suggested that did u file AC-21 ? U dont need to file AC-21 as U R NOT THE PRIMARY APPLICANT .

The only query is whether u should be using the new H1 to work at your new place or you should use EAD to work at new place , well if you use EAD then u will loose your H1 status .To be on safe side if you have EAD ? use it to work at your new place then u need not worry at all ,

because all the derivative applicant those who uses EAD to work , work at their will , they might work for few days/month and if they dont want/get work they dont , but they remain in status because their 485 is pending and their status is atleast AOS pending . So same is your case .

SO just think over whether u would like to work for your new employer on H1 or EAD.EAD is the safest bet . You should have used EAD (if u had one )instead of going for H1 transfer . But the margin for which u didnt use your H1 is very less so its fine , even if they find it they might ignore it , but its better that you use your EAD now so when u go for interview you can say that u r working on EAD , so they might not dig more into your H1 details .

Ok good luck !!! think over whatever i wrote and act wisely.
 
Thanks both of you for your reply.

Is it a CIS regulation that as long as a person's out-of-status period is less than 180 days, he/she should still be qualified for 485 approval? Any official website/documents mention about that?

No, I didn't sent AC21 because I am not the primary applicant. My old company kept me on payroll until I started working for the new company so I was able to provide the latest paystab from the old company when I applied for the H1B transfer.

Yes. I have valid EAD all the time although I never used it. It covered the period of Jan 10, 2005 - Feb 28, 2005.
 
The fact that your old company kept u on payroll and provided u with the latest payslip till u got the new jobs proves that u were always working and maintaining your H1 status .

So what R U worried of ???????

I don't see ANY reason for u to be worried at all .
 
No problem at all

Since you never used EAD, your H1status remains and you are not affected by the Gap. DONOT MENTION THIS GAP IN THE 485 INTERVIEW.
Most of all, your spouse is primary applicant, and yours is dependent, you don't have to worry at all.
 
> person's out-of-status period is less than 180 days, he/she should still be qualified for 485

Yes, it is well known 245(k) regulation. See:
http://www.murthy.com/adjsta.html

> latest paystab from the old company
> I have valid EAD all the time

As for the interview, do not volunteer any information not specifically asked. But if specifically questioned, do not lie, or it will be the most serious mistake you can make. Take an attorney, whose presence will ensure the interivew stays within limits.

You are worrying for absolutely nothing. You were not out of H1. If you were, the EAD covers. If both fail through, 245(k) covers. You are crazy to be even thinking about being out of status..

~T
 
Thanks a lot for all you guys' comments. I feel much better and am confident on my 485 interview now.
 
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