Desperate - I-485 Please help

S

suresh_colo

Registered Users (C)
Friends,

My I-485 was filed in Oct./2001 by my current employer.

My first H1B (with my prior company) was from March/1999. I was laid off in August/1999.

I stayed in the country looking for jobs and in November/1999 I was offered a new job. My new company sponsored my curnent H1B. It was approved in March/2000. I went to Canada to get a new I-94 and came back to the U.S.

When my company's attorney filed my I-485 I guess he did not take into account that I was out of status deom August/1999 thru March/2000.

Can my I-485 be denied? What should I do?
Has anyone ever heard of a case like mine?

Please advise.
 
I suppose u can adjust status under 245i. It will cost you just $1000.00 provided you qualify all its requirements.

I read about such a case a while back in which INS has raised an RFE about status and the guy sent 1000.00 bucks. Inquire about 245i. I am quite sure you will be fine.

Good luck!
 
Did the new H1 have a I-94 attached to it.

When your H1 was approved did your get a New I-94 number or did it have the existing I-94 number. If it did have the existing number then INS might not realize that you were out of status. Anyways contact your attorney and ask him this question....my 2 cents....
 
I just spoke to my attorney.
He said the reason why I went to Canada to get a new I-94 to start working for my new company (after being out of status for 7 months) was to clear this out of status past history.
Once I came back to the US with a new I-94 the out of status does not exist anymore.
He said I will be fine.

Thanks for the input.
 
I have the same situation

Suresh_colo,
I have the same situation as you do. I was laid off around April 2000. I found a new job immediately but the H-1B quota was exhausted by then so I had to wait till the November of the year. I was in the country and worked without authorization. Even though I went to Canada and re-entered into US with my new H-1b approval and new I-94, my lawyer asked me to use 245i as I had worked without authroization.

My lawyer also mentioned that everytime you enter US, the old clock gets reset and a new clocks gets started to monitor your visa status. So if you had not worked without any authorization during the time when you were laid off, you should be fine as you have exited and entered the US.

Plus, if your old I-94 (the one you had from your old employer, befor you were laid off) had an expiration date after you found new job, you should be ok as well. Since the clock starts tickling when your I-94 is expired.

Hope this helps.

Thanks.
 
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haraputta,

When did you file for 245(i)? Was it at the same time you filed I-485?
Did you have to pay the $ 1,000 penalty fee?
Did you have to prove that you were physically present in the U.S. on December, 21 2000? How do you prove that?

My attorney will be studying two options:

Wait and see if my I-485 gets approved without any RFE. He said the chance of getting an RFE on this is 10-20%. If I do get an RFE on this then we would file 245(i).

The second option would be to file 245(i) right now.

thanks!
 
suresh colo

I went through the same dilemma at the time of filing of my I-485. My attorney and I had two options to handle the filing.

1- File 485 without section 245(i) and let the INS figure out if I was out of status for more than 6 months and let them send RFE once they find out that I, indeed, was out of status.

2- File 485 WITH 245(i) and admit to INS that I was out of status, pay the penalty and be done with it. This option is supposed to make your case processing go smooth and get the approval without any hiccups.

Since I was involved in an employment without authorization, filing I-485 without 245(i) would had involved hiding my status information from INS. INS could had viewed it as fraud and my attorney was not comfortable with that so we filed I-485 with 245(i) which shows to INS that I was out of status at some point during my stay in US. Even though I exited and entered US twice after being involved in an unauthorized employment and technically that should reset my out of status clock. Both my attorney and I wanted to play the safe game. If INS figures out that there is no reason for me to use 245(i) they would return the penalty fee and will approve my case.

YES.. I had to prove that I was in USA on December 21st, 2000 and I tried to prove it by sending my credit card bills and transactions that I made on, immediately before and immediately after December 21st, 2000.

Hope that my case will get approved without any complications.

Good luck to you.

Thanks.
 
haraputta,

Couldn't you have used 245(k) instead of 245(i)?

This is what I found online:

http://my.netian.com/~wintry/memo2.htm
"an employment based immigrant may adjust status in the United States under section 245(k) even if he has been out of status for up to 180 days since his last entry into the U.S."

http://www.rreeves.com/pub_129.htm
Finally, Section 245(k) allows for the adjustment of status of certain employment-based immigrants notwithstanding the fact that the Applicant is out of status, as long as the out of status period is less than 180 days. The INS has stated the 180 days is measured only from the expiration of their authorized stay since the alien’s last entry into the United States, which means that the time is not counted in the aggregate, but must be consecutive to lose eligibility.

They both talk about being in good status "after your last entry" into the U.S.

Why is that not an option for us?


Also, what else can I use to prove my physical presence in the U.S. on December, 21 2000. I did not use my credit card that month. Any idea on how/where I can get a government-issued document proving that?
Would a letter from my employer suffice?

Thank you so much for replying!

Suresh
 
Suresh

A letter from the employer testifying that you were in US on December 21st, 2000 will help but I am not sure that it would be enough to quench an adjudicating officer's thirst for the proof.

Any transaction, and I mean, any transaction can do the magic. Transactions may not need to occur on 21st December but anything within a week long window of that particular week will be very helpful.

About 245(k) and 245(i), I used 245(i) because I just wanted to get done with it. The ball is in INS court to hit and I am hoping an approval to be hit back to me :)

Good Luck..

Haraputta
 
Haraputta,

Sorry for keeping asking you questions, but you've been very helpful in sharing your experience with me and I truly appreciate it.

Regarding the transaction dates, I have utility bills for December/2000 and January/2001.
I also have a bank statement that shows that I used an ATM on December 18, 2000 which is 3 days before.
Do you think that will suffice?

When are you expecting your approval?
We should try to keep in touch since our cases have a lot in common.

Thanks again,

Suresh
 
Yes that should be sufficient

Suresh,
Yes those utility bills and the ATM transactions should be good enough to prove that you were within the US on Dec. 21st, 2000.

My RD is Oct. 18, 2001 and ND is Nov. 20, 2001. Finger printing was done April 30th, 2002. The AVM has not been updated yet and I don't care too much about that. I will consider myself to be lucky if I get the approval within this year.

I will try to stay in touch with you. What are your RD and ND?

Thanks.
--haraputta
 
haraputta,

My RD is 10/30/01 and ND is 11/21/01.
I'm also expecting to have my approval before the end of the year.

let's keep in touch!

Suresh
 
Suresh

Our RD and ND are very close. Please keep me posted with any updates as I will try to do the same.

When did you go through with your finger printing. Did the AVM updat the message once you went through with your FP?

Thanks.
 
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