AOS using 245(k)?

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LAKING

Registered Users (C)
While entering US( after less than 30 days visit to Canada) latest H1 extension was not asked so I-94 issued till the expiry of date of VISA. H1 extension date is beyond the I-94 issued at POE. Stayed beyond the I-94 date issued at POE and Filed for A0S(I485 employment based) less than 180 days of latest I-94 expiry date.

Question is does this case qualifies for Section 245(k)? Nowhere in AOS forms this issue is mentioned and provided the copies of I-94 at POE and H1 extension. Continued to work till the end of H1b date and EAD from then.

Since stayted beyond I-94 Expiry and worked because H1 is valid and unexpired till its expiry and EAD from that date, is it a case of

(i) OUT OF STATUS
(ii) Un authorized working

one or both. Please share your thought on this.

Appreciate very much if an attorney or any knowledgeble members responds. This is a serious subject. Thanks for your help.
 
Originally posted by fa485
While entering US( after less than 30 days visit to Canada) latest H1 extension was not asked so I-94 issued till the expiry of date of VISA. H1 extension date is beyond the I-94 issued at POE. Stayed beyond the I-94 date issued at POE and Filed for A0S(I485 employment based) less than 180 days of latest I-94 expiry date.

Question is does this case qualifies for Section 245(k)? Nowhere in AOS forms this issue is mentioned and provided the copies of I-94 at POE and H1 extension. Continued to work till the end of H1b date and EAD from then.

Since stayted beyond I-94 Expiry and worked because H1 is valid and unexpired till its expiry and EAD from that date, is it a case of

(i) OUT OF STATUS
(ii) Un authorized working

one or both. Please share your thought on this.

Appreciate very much if an attorney or any knowledgeble members responds. This is a serious subject. Thanks for your help.
Click to expand...

As long as u have valid H1 permit (not visa) or valid EAD while u r working or in the US, u r not out of status.
 
Originally posted by fa485
...
(i) OUT OF STATUS
(ii) Un authorized working
...
Click to expand...

IMHO, both. As soon as your I-94 expires (unless you have I-485 pending at the time), you are out of status. As long as you are out of status, you have no legal means to work (whether or not you have the visa extension).

Since you've been visiting Canada, you should have renewed your H-1B stamp in a US Consulate. Then you would not have this problem in the first place.
 
There is a supplemental document for 245i

When filing AOS using document I485 you fill in also I485A
and pay $1000. That is how 245i works. The handbook is
below.


http://uscis.gov/graphics/lawsregs/handbook/245i.pdf

I don't see why you are worried about I.94 expiry though.
I came over in 97 and I haven't left since so my I94 expired
4 years ago. So what. If you are currently in AOS and you
were never out of status prior to filing AOS then you are in
status and not a 245i case. (Unfortunately my spouse is 245i
and we paid the $1000)
 
Question is about filing AOS (OOS under 180) days

Referring to Bitterman, Question is about filing AOS Out of Status under 180)days. Is the status Out of Status beyond the I-94 expiry and is H1 continues to be valid as it not revoked.
Ofcourse not allowed to remain in the country.

Basically it is boiling down to question of < 180 days Out of Status as AOS is filed.

Please anyone anwering the questions, please read through the question understand and then reply if you like to. Thanks for your hep
 
Some confusion in your question

Was there some period of time when you did not have an
H1? The H1 determines your status. If there was no gap
between H1 and AOS then there is no time when you were
out of status.

I'm not sure where the POE I.94 document comes in because
each H1 approval notice comes with a new I.94 which supersedes
any POE I.94.

Please try and break it down into smaller information peices so we
can tell at what point you were out of status. As far as I know H1
is continuous in that if at any point you were not covered by it you
would not have been able to extend it.

Look at the bottom of your approval notice for H1 (Form I797A)
It has in the left hand square the H!B the lawyer gives to you
and in the right hand square is the NEW I-94 Departure Record
which supercedes the POE I-94. It says in print above it to take
it and staple it to your POE I-94.


Hope this helps
 
It is my understanding that out of status conditions under 180 days are usually tolerated at the time of I-485 filing.

Your case, however, is different. You have unauthorized employment sitting on your back, which is worse. Having out of status conditions is already bad, and unauthorized employment only makes it worse.

And it is not a question if your visa was valid (or not revoked for that matter). Because once you are in the country, your visas no longer have any significance until you exit the country and attempt to re-enter. This is something that is hard to understand (why? beats me) - the difference between a visa and a status. Suppose you have two visas - a guest and a work visa. You enter presenting the guest visa at POE, so you receive the guest visitor status. You can't engage in any legal employment, although the other - work - visa is in your possession and apparently valid. Why? Because the current status (guest visitor) says: "No employment. No way, no how."

Anyway. Back to the point. The point is that the law says (and I quote):
INA ACT 245 <...>
(k) 7/ An alien who is eligible to receive an immigrant visa under paragraph (1), (2), or (3) of section 203(b) (or, in the case of an alien who is an immigrant described in section 101(a)(27)(C), under section 203(b)(4)) may adjust status pursuant to subsection (a) and notwithstanding subsection (c)(2), (c)(7), and (c)(8), if--


(1) the alien, on the date of filing an application for adjustment of status, is present in the United States pursuant to a lawful admission;


(2) the alien, subsequent to such lawful admission has not, for an aggregate period exceeding 180 days--


(A) failed to maintain, continuously, a lawful status;


(B) engaged in unauthorized employment; or


(C) otherwise violated the terms and conditions of the alien's admission.
Click to expand...
So it seems that both unauthorized employment and out of status for no longer than 180 days before I-485 filing are somewhat acceptable (probably at sole discretion of the adjudicating officer, IMO).

Now, the interesting part is that your unauthorized employment probably went way beyond those 180 days, as you insist that H-1B was still valid at the time. You see, while it was valid, it did not matter for reasons described above and you should have procured an EAD to start working legally again. Why is it "the interesting part"? Well... because you have become an adjustee from the moment of I-485 filing. And adjustees are allowed more flexibility in terms of unauthorized employment. Don't get me wrong - I could not find any written law on this. But some articles published by experienced immigration attorneys indicate some strange stuff... Nothing to rely on, unfortunately. Dig through FAQ section on http://www.usvisanews.com for more information on adjustees.
 
Thanks Bitterman. Think except for Bitterman, rest of them are not reading question properly. Please be judicious in answering.

Bitterman,
Continuing further, even though latest I-94 issued in Canada after a short period less than 30 days visit (Immigration inspections happen before you board the flight to US) ,

is there is rule or provision such that previously issued I-94 is not invalidated. For road crossing they dont even issue new I-94.

In other words is there scope for previous I-94 is valid (specifically after a short visits in contiguous countries US & Canada ) so that everything else will be alright. This is the key aspect to whole issue. Thanks.
 
It is true that short trips to Mexico and Canada do not necessarily constitute invalidation of the current I-94. It depends on the POE, actually.

For example, I've been to Canada two times. Once, I went to Vancouver, BC in 2001 for 2 days to revalidate my H-1B stamp, and an immigration officer at POE just looked at my I-94, asked a few questions and waived me in. The other time I went to Toronto, ON in 2004 for a 7 day vacation, and an immigration officer at POE actually unstapled my I-94 from the passport and issued a new one (quite insensetively, he has stamped a wrong expiration date,.. like it matters on AP I-94).

It is my understanding that only the latest I-94 is actually valid. Consider the example I gave you in the previous post. Suppose you have filed a Change Of Status request from "guest visitor" status to "non-immigrant worker" status, and received a new I-94 with the approval. Your status is no longer "guest visitor", but "non-immigrant worker", so you just retain the old I-94 to surrender it to an airline official next time you leave the country. And the old I-94, with which you could not engage into legal employment, is no longer "current", and plays no significant role.

I can't seem to recall right now, but I think I have seen some official memo in regard of H-1B extensions and entering on expired H-1B stamp. Maybe, it's not as bad as it seems... You better go to the H-1B forum and ask questions there.

Better yet, consult an immigration attorney on this. IMO, it is far too serious.
 
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