useful info for 245k
http://www.murthy.com/adjsta.html
I also searched Murthy's chats for "245(k)" and found these.
Question: What would happen if a person works after the EAD is expired?
Answer: A person is deemed to be working without valid authorization in the U.S. after the expiration date on the EAD. As long as the total time of working or remaining in the U.S. out of status or working without valid authorization does not exceed an aggregate total of 180 days (since the last entry to the U.S.), one is likely eligible to file the I-485 approval and possibly obtain an approval under Section 245(k) of the Immigration and Nationality Act. Otherwise, the individual risks obtaining an I-485 denial for unauthorized employment beyond 180 days. Jan-9-2006.
Question: If in the past I have been out of H1B status for 6 months (I-94 not expired), is this going to hurt my GC (or any new petitions to change / extend / adjust status)?
Answer: A person who fails to maintain status for over 180 days may have a problem obtaining the approval of the I-485, which allows a maximum of 180 days for one to be out of status under Section 245(k) of the INA, unless the person is covered under 245(i) of the INA. Sometimes, though, the fault of the employer in not paying the salary while the person is considered an employee may not pose a problem but at other times it may pose a problem. Not having pay stubs will certainly adversely impact the ability to obtain an extension or change of status from the USCIS. Jun-20-2005.
Question: Hi. Is the W-2 a required document for I-485 or I-140? I do not have the W-2 for one year as I was not paid by my employer and was on personal leave. Please advise.
Answer: Generally, the W-2 is not required for the I-485 filing or, often, even for its approval, but it may be required to establish that a person was in valid legal status in the U.S. In an employment-based (EB) case, a person is required to show that s/he was in valid legal status the entire time, except for a maximum time of up to 180 days, as available under Section 245(k) of the INA. So the W-2 may not be required, but if one is called for an interview, the examiner may ask for evidence of the W-2s and other evidence of having maintained status in the U.S. even though it is not always required. Jun-13-2005.
Question: If you work when your H1B has expired and your EAD application has not been approved yet, how does that affect things? Essentially, for me, it was 20 days between H1B expiry and EAD approval. What is the 180-day rule I keep hearing about?
Answer: If a person worked for 20 days without any USCIS or Department of Labor authorization, then that person is not prevented from, or in other words, is allowed to file and obtain an adjustment-of-status approval, as long as s/he did not live or work without authorization for over 180 days. This is allowed under Section 245(k) of the Immigration and Nationality Act for employment-based applicants. It is likely that the 20 days will not be an issue in obtaining the GC approval. Jan-31-2005.
Question: Congratulations on receiving the prestigious AV Rating! Just one small question. I received an H1B extension approval and I-94 with a 13-day gap between the old one and the extension notice. What will be the implications in stamping and the GC?
Answer: Thank you for your kind congratulations! There should be no implications in the gap in dates. I do not understand why the USCIS has started approving cases with a gap in dates when a person has filed the papers prior to the expiration of the prior status. Hopefully, this fact can be explained by submitting both the approval notice and the USCIS-issued receipt notice to show the date of filing as being while maintaining the prior status. Anyway, worst case scenario, even if the gap is somehow construed as a problem, the bottom line is that one is still able to file the I-485 and get the GC stamping in the PP as long as any gap in legal status does not exceed 180 days or just under 6 months under Section 245(k) of the Immigration and Nationality Act. Jul-19-2004.
Question: Why does the USCIS request pay stubs? Is it to verify the salary or to check continuity of employment? The USCIS asked for six months of pay stubs, but I have only five.
Answer: This depends on the purpose of the RFE filing. For a GC case it is different, since under 245(k) a person may only be out of status for up to 180 days. On the other hand, for an H1B the purpose of the RFE is to ensure that the person is maintaining valid legal status. Sending in the 5 months of pay stubs may be sufficient since the USCIS may determine if they will approve the case with the information provided. Generally, it would seem to satisfy most of the evidence in such a case, though there is no guarantee that the USCIS may not deny the case or issue another RFE. Jan-12-2004.
Question: H1B visa and I-94 expire on a later date than 6 year H1B period. With I-140 already approved, does one have to file for a 7th year extension?
Answer: By law, the CIS cannot grant a person status or additional time beyond that allowed under law. If the time that one may be out of status is less than 180 days, then s/he may be able to take advantage of 245(k) and argue eligibility for the I-485 to be approved. If the I-140 has been approved, then by filing the I-485, one is able to be "in a period of stay authorized by the Attorney General." Although this may help generally, it is difficult to give or rely on any legal advice in a situation like this without understanding the nuances of this issue and the potential risks. Also, maybe one could apply for the H1B extension, in case the I-485 is denied for any reason, but it could result in other problems if the CIS reviews the case carefully now. Oct-13-2003.
Question: Thanks, Ms. Murthy, for your great service. Can one reapply for I-485 or appeal if the I-485 is rejected, without having to leave the country (USA)?
Answer: One may both reapply and also possibly file a new case if one believes the INS denial was in error. If the gap since the denial and the new filing is less than 180 days total of ever being out of status, the person on an employment based case is legally able to obtain an I-485 approval without concern of the 3-year or 10-year bars under Section 245(k) of the INA. Jan-6-2003.
