Could I be ineligible for AOS without knowing it?

E

ETA

Registered Users (C)
Hi all.

I'm currently waiting for Philly DOL to process my LC. I've never been out of status as far as I know but as we get closer to making the CP vs AOS decision I'm more concerned / paranoid about the possibility that I was unknowingly out of status at some point.

I have zero concerns about my current stay in the US -- all the visas (TN, TN, H1B) have been handled through attorneys in a timely manner and I have records of all the visas and work records for this period.

But, from 02/91 through 08/92 I was working on a J1 visa and I'm concerned because, although as far as I know my status was always valid, this was over 10 years ago and I don't currently have any records from this period. My worst nightmare is that someone didn't process the J1 properly so I was out of status without knowing it.

Should I even be concerned given that this was more than 10 years ago and/or because I returned to Canada for 5+ years between that stay and my current one?

If this is likely to come up during AOS processing -- what are my options? I'm pretty sure I can get my work records from the university that I was working for but where could I obtain the J1 records for that period? Could I actually get these from the BCIS in order to verify that I was in status at that time so I'll know that I'm eligible for AOS? Maybe the border would have this information -- presumably I had to enter / leave on the J1 visa (I think I turned it in when I returned to Canada in '92)?

The easy answer would be to go with consular processing (I should be ok on my H1B for another 3-4 years so I don't need to do AOS for an EAD) but, while my job situation seems stable at the moment, AOS is attractive because of the possible job portability angle.

Thanks in advance for any thoughts / comments.

ETA
 
I wouldn't sweat the J1 ten years ago. You clearly did the 2 year home residency requirement, and I believe section 245 only indicates that you cannot have been out of status since your last admission to the US.

Don't worry.
 
Originally posted by TheRealCanadian
I wouldn't sweat the J1 ten years ago. You clearly did the 2 year home residency requirement, and I believe section 245 only indicates that you cannot have been out of status since your last admission to the US.
Click to expand...

Hi TheRealCanadian.

Thanks for your comments.

What originally got me worked up was this thread: http://www.immigrationportal.com/showthread.php?s=&threadid=86851&perpage=15&pagenumber=1

Specifically, from the 245 doc at http://www.immigration.gov/lpBin/lp...slb-8cfrsec2451) wrt inelligibility for AOS:

(4) Any alien who, on or after January 1, 1977, was employed in the United States without authorization prior to filing an application for adjustment of status.

Prior to reading this, I hadn't given my J1 situation a second thought, now, if this really is something that could come up during AOS, it seems worthwhile to establish with certainty that I was in status. I'm about 99% certain that I was fine, but given the possible downside if I'm wrong, that missing 1% is scary :(.

Of course, I've contacted our lawyer about this issue but I also raised it here to see what others thought / to see if anyone has run into this situation themselves.

ETA
 
Last edited by a moderator:
Hmm, I'm paraphrasing here somewhat but our lawyer suggested that if I was really concerned about this then I could depart and re-enter the US within the 6 months before we file the AOS which would give us 245(k) protection.

The information at the following link (http://www.ilw.com/lawyers/seminars/2001,1108-Answer1_9-11.shtm) seems to confirm this, specifically:

"This provision offers certain nonimmigrant workers seeking to adjust status a generous forgiveness for a variety of past infractions, as long as the particular requirements of 245(k) can be satisfied. To qualify under 245(k), the applicant on the date of filing for AOS must be present in the U.S. pursuant to a lawful admission, and must not thereafter, for a period exceeding 180 days, have (a) failed to maintain continuously a lawful status; (b) engaged in unauthorized employment; or (c) otherwise violated the terms and conditions of the applicant's admission."

He also mentioned that form G-639 (Freedom of Information Act) can be filed to obtain information from the INS / BCIS files. Has anyone done this recently and is the turn-around time fairly good?

Thoughts/Comments?

ETA
 
I do not understand the 245(k).

Is 180 days of unauthorized employment cumulative during all stays in the US or is it since the last entry?

I thought that it is cumulative during all stays in the US counting from more than 10 years ago.

Also I heard that say you have 1 day of unauthorized employment then you are out of status that day. Then say you do not engage in any unauthorized employment and leave a year later - then you are subject to a 10 year ban inspite of the fact that you maintained your status otherwise and you engaged in unauthorized employment without your knowledge (e.g: on campus you thought that you would be cleaning the cafateria but it was paid by some other company - so at the end it was off campus employment).

Otherwise section 245(k) would allow people who had unauthorized employment while maintaining some other status to just leave the US, come back, still engage in unauthorized employment for less than 180 days and still get AOS. I do not think that it works this way.
 
I don't understand it either. As I mentioned on the other thread (sorry for getting this discussion started in 2 places -- maybe we need a new 245(k) thread):

Hmm, I'm having trouble understanding whether 245(k) requires you to re-enter the US (in valid status) and remain in valid status

a) for at *least* 180 days *before* filing for AOS, or,
b) for at *least* 180 days *after* filing for AOS, or,
c) for at *most* 180 days *before* filing for AOS.

In my case, I've been in valid status since I entered the US 5 years ago (and I've never been out of status as far as I know, but as mentioned in the other thread I'm somewhat paranoid since I don't actually have my records from 10 years ago).

So with interpretation a), I already have 245(k) protection, with b), I will have it 180 days after filing the AOS (if I keep my nose clean) and with c), I will have to leave/re-enter the US and wait 180 days before filing the AOS.

The info at the above-mentioned link seems to suggest that a) is the correct interpretation, yet our lawyer is suggesting that I would need to exit/re-enter the US then file the AOS within 180 days which sounds like c).

Speaking from a position of complete ignorance , c) seems to "make sense" otherwise, with a), pretty much anyone who is *currently* in the US for 180+ days and was in valid status wouldn't be immune to issues due to previous transgressions?

Thoughts/Comments?

ETA
 
Hmm, this info seems to support option a), assuming it is valid:

http://www.usvisanews.com/wedquest052803.html

4. I came to the U.S. in August of 1999 through Company A. However, Company A was unable to provide me with a job in 1999, so I was unable to file taxes for that year as I did not have a W-2. In January 2000, I got a job with Company B who sponsored me for an H-1B which was approved in June 2000. As I did not have proof of previous employment with Company A, I had to return to my home country and re-enter in order to obtain my H-1B visa and begin working for Company B. I re-entered the U.S. in July 2000, and I have been working continuously for Company B since that date. I would like to begin applying for a green card, but I am concerned because of my failure to work in 1999. (I have filed taxes for 2000, 2001, and 2002; and I will have a W-2 to file taxes for 2003.) Am I now eligible to apply for a green card, or do I have to wait until the 6-year term is over, exit the U.S. for a year, and then come back to begin the green card process?

A: Thanks to Section 245(k) of the INA you should be able to adjust status and be admitted as a permanent resident despite your previous violation of status. Under Section 245(k), so long as you have maintained status and not acted in any other manner that would violate the terms of your admission (e.g. working without authorization) since your most recent lawful admission to the U.S. you should not have a problem.

ETA
 
And this (http://www.shusterman.com/jun98.html#7:) seems to imply that 245(k) applies as long as you haven't accumulated > 180 days of invalid status since your last entry (as long as you otherwise qualify) but then goes on to imply that there is also a limit of 180 days of being out of status prior to the entry?

Section 245(k)

This section of law allows an intending immigrant to apply for adjustment of status under section 245(a) without payment of a fine if (1) they qualify under certain employment-based categories, and (2) have not out-of-status for an aggregate peeriod of 180 days.

At the above-referenced meeting, the INS agreed that the 180 days applies only to days after the alien's last admission to the U.S.

Example: If an alien is admitted to the U.S. in legal status after being in the U.S. 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 in the U.S. under section 245(k).

Also, if the principal is eligible for adjustment of status under section 245(k), the spouse and minor, unmarried children may adjust status under section 245(k) even if they have been out-of- status for over 180 days.

ETA
 
Last edited by a moderator:
And another site which seems to support the more relaxed interpretation of 245(k) http://imminfo.com/Knowledgebase/Immigrants/AOS.html:

Employment based immigrants only have to prove that their last entry before filing for adjustment of status was lawful and they they have not accumulated a total of more than 180 days out of status since that entry. This benefit is contained in Section 245(k) of the Immigration and Nationality Act. These benefits are not available to family based quota immigrants.

...

Section 245(k) provides an exception for applicants who have violated their status previously if they meet certain conditions. Notably, these are that the applicant is an employment based first second or third preference immigrant, the applicant has been lawfully admitted to the U.S. on his or her most recent entry, and the applicant has not, for a total period of 180 days, failed to maintain status, engaged in unauthorized employment, or otherwise violated status.

...

245(k) An alien who is eligible to receive an immigrant visa under paragraph (1), (2), or (3) of section 203(b) [Note: these are the employment based first, second and third preference categories] (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



Can this be right -- doesn't this mean that pretty much any past transgressions would be "forgiven" if this were the case? Is this site failing to mention the 180 day limit for being out of status prior to the most recent entry that the previous site mentioned?

ETA
 
Last edited by a moderator:
Originally posted by ETA
Can this be right -- doesn't this mean that pretty much any past transgressions would be "forgiven" if this were the case? Is this site failing to mention the 180 day limit for being out of status prior to the most recent entry that the previous site mentioned?
Click to expand...

245 seems to indicate that the clocks are reset upon each entry. I don't think you need to worry.

I honestly wouldn't worry about that J-1 10 years ago. There's a 99% chance all went well, and even if it didn't there's little likelihood that BCIS would even find out. Don't waste your time worrying about stuff.

If your PD is before 4/30/01 and you were in the US on 12/22/2000, you are covered under 245i. Basically, file the I-485. If BCIS has an issue, they'll send you a Notice Of Intent to Deny, at which point you cut them a $1000 cheque and file an I-485A form. However, I don't think this will happen.

You're going to give yourself an ulcer for nothing. :)
 
Originally posted by TheRealCanadian
You're going to give yourself an ulcer for nothing. :)
Click to expand...

Heh :p.

Thanks again for your comments.

I'm wondering if anyone knows if popping up to Toronto for a few days then re-entering the US by showing your current H1B would constitute a "valid admission to the US" or would you need to do something more like asking them to stamp your passport or asking for new I-94?

In my case (assuming the above info is correct...) I'm probably already covered by 245(k) so it probably doesn't matter if I exit/re-enter and reset the 245(k) "clock" but I'm curious as to whether a quick trip to Canada would cause this to happen assuming I'm not processed apart from validating my current visa (I generally present my I-797 copy and my passport to the border guard whenever I've re-entered the US in the past).

Also, as far as I know, I'm not covered by 245(i) -- although I've been in the US since 1998, my LC was only started around Jan 2002.

ETA
 
Last edited by a moderator:
You must log in or register to reply here.
Top