AP Question - Imp

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forum123

Registered Users (C)
I have heard lot of conflicting reports about using AP to travel, I would appreciate if someone can answer this for me.

I was laid off from the first employer and then when I found the next employment after some time, INS approved my application but mentioned something like this "this person was found out of status....", I then went to Delhi to get the visa stamped.

INS had asked for paystubs and I didnot had the paystubs for the period which they asked for.

I know there is a distinction between "Unlawful presence" and "out of status", as the former is suppose to create problem if traveling on AP, as according to Murthy the former occurs if the I94 is expired which was not the case for me.

About "Out of Status", I read that it should be 180 days or more in order to have problems, I am not sure how would they know that as my H1 was 'NOT' cancelled by my former employer.

I have travelled couple of times on the new H1 without any problem but this will be the first time I will be travelling on AP, as my H1 is expired first 3 years, can someone tell me, if the "Out of Status" issue can create problem for AP?
 
Originally posted by forum123
About "Out of Status", I read that it should be 180 days or more in order to have problems, I am not sure how would they know that as my H1 was 'NOT' cancelled by my former employer.
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If you have accumulated 180 days or more of "unlawful presence", then you are subject to the 3-year re-entry bar should you leave the US. This is non-discretionary and cannot be waived, but doesn't seem to be the problem here.

If you have been out of status even for a day, your AOS cannot be approved - but there are two significant exceptions. 245k provides that if you have been out of status for less than 180 days and you are an EB-485 applicant, then you can be approved. 245i allows you to be out of status for an unlimited period of time, provided your priority date was before 04/30/2001 and you were physically present in the US on 12/22/2000.

Either way, if your adjustment is pending and the AP is OK, then I doubt that there will be an issue re-entering on AP. You should be good, provided you are 100% sure you are not subject to the re-entry bar. However, if you were, I doubt that you could have re-entered after your consular interview. So most likely all is good - enjoy your trip.
 
You scared me, my lawyer never said anything like 'cannot be approved for AOS, if out of status' as I had retained the same lawyer.

Anyway so will the BCIS send an RFE for such action, that is asking me to file 245K, what are the implications, more delays?
 
Originally posted by forum123
Anyway so will the BCIS send an RFE for such action, that is asking me to file 245K, what are the implications, more delays?
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You don't "file" 245k, it's a subsection of the INA. The INA (the law governing US immigration) Section 245 covers adjusting status. 245 says that no one who has been out of status can adjust - but subsections i and k cover the exceptions.

You do not need to do anything special to file 245k. In most cases the adjudicator will see that the out of status period is less than 180 days, you are covered by 245k and that's that. In the worst case, you may get a Notice of Intent to Deny, at which point your attorney responds claiming relief under section 245k and the problem goes away. It really shouldn't frighten you, it's really a non-issue. I just bring it to your attention because that's the way the law is.

For 245i relief, on the other hand, you need to pay a $1000 fine and file an I-485A form. I wouldn't do that unless BCIS sends out the NOID.

Don't worry. Really.
 
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