Fear of I-485 denial

R

Rohani

Registered Users (C)
Guys,

This is my employment history in United states.

1) Aug 2000 - Aug 2001 (Company A)

2) Sept 2001 - Feb 2002 (Company B)
Got laid off in February 2002 but company B didn't cancel H1 petition.
Company B paid severance allowance till mid April 2002. And H1 petition was
cancelled by B in May 2002.

3) Company A filed H1 transfer in March 2002 but took on W2 in June 2002.
Since June 2002, I am still working for Company A.

4) I was actually unpaid from Mid April 2002 to Mid June 2002.

My I-140 was approved in March 2003 and I still have my 485 application pending (Filed in April 2003) and recently had an RFE about current employment letter.

Was I legally out of status during unpaid period, when my H1 transfer application was pending? Should I have any fear about I-485 denial due to this unpaid period.

Any comments Gurus.
 
When was your H1 transfer approved..??
I guess, if you have an application pending and that the time frame is less than 180 days...you shud be fine.

Regarding "fears"...just read my signature. :)
 
I law it's not legal. Dont worry man, during those years many of them are in the same situation. Tell them you are sick or on vacation during that time if THEY asked. Dont provide additional information if they dont ask.
 
hi,

H1 transfer was applied in April 2002 and got approved in December 2002. But
I was on W2 since June 2002 afer getting a project. So it is a matter of 45-60 days only. I think legally you are in status once H1 transfer is filed and you have a receipt from INS.

In RFE, INS has only asked for current employment letter with date of hire, salary and prospect of employment. And my employer wrote that I worked for his company from August 2000 to August 2001 and now continualy working from June 2002 onwards.

My only concern is the unpaid period between mid April to Mid June?

Thanks
 
Don't worry, you're fine even if you're out of status or have received unauthorized employment for <180 days since your last entry into US. The clause 245(k) covers such situation. USCIS may not even bother to RFE you if they can clearly see you have no questionable period >180 days as 245(k) shall be applicable otherwise.
 
I had a similar situation during those years, and the gap in between two jobs was even longer than your. My question is how do you know your employer cancelled your H1b after the layoff? I believe most of the employer won't bother to do this.

I will be using AP travelling outside of US, I want to know if I am in risk of getting rejected in POE. Can someone tell me how can I make sure I don't have a record of illegal staying in US?

Thanks,
 
485 Petition

How was the transition period presented in your 485?

Did you (or your attorney) mention the details of your lay off from company B? What supporting documents did you attach that would lead the officer to believe that there is a discrepancy in your US stay?

What I am trying to get at is that it depends a lot on how the 485 petition is filed?

I do not think your case will be denied based on the 45-60 day discrepancy. 245K should come to your rescue.

Tim
 
Rohini, this is perfectly normal to stay few days without salary..in worst case you are covered as well ( 245 )..no need to think a lot about it :)
 
Not getting the pay is not a problem as long as you have continuous employment history. I mean, the official (on letter)start date of your employment with company A should be just 1 day after the official (on the experience letter) end date of company B. That's the only thing that matters. If there is a gap between these dates (in the letters), then you have to think about 245.
 
Being we are in these discussion's, I just want to add on more question.

Just for Example: How the 485 cases will get around when they are on bench for more six months to two years with out any salary, but still hanging with the same employer who sponsered the H1B1. I know many people in 2001-2002 years who initially came hear could not get the project for a long time due to market conditions. What would happen if such kind of people file the 485 cases, is there any section which will cover there cases or simple they get the denial letters....if they file for 485.

Appreciate if any one could answer.
 
first of all , you dont mention anything about any "bench period" in your application. Bcoz there is no term "bench" in USCIS' books. I guess its against the law if the employer doesnt pay the H1 employee for that long, the amount specified in the LCA.
I would Wait till I get atleast 6 paystubs before filing for I485.
 
Agreed, There is no bench stufff with the uscis.
What would happen if they found out that, Once you land in this country on a work visa and your GC labor filing and documents shows that you had a continous history of employment but still your w2 of that year does not reflect that amount.
 
dbwr said:
Agreed, There is no bench stufff with the uscis.
What would happen if they found out that, Once you land in this country on a work visa and your GC labor filing and documents shows that you had a continous history of employment but still your w2 of that year does not reflect that amount.
Click to expand...

Such people (with very poor W2) should not start GC process soon. They better wait till they get 2 decent W2's.
 
dsatish said:
Such people (with very poor W2) should not start GC process soon. They better wait till they get 2 decent W2's.
Click to expand...
Usually USCIS asks for the w2 for years from your last entry into US before I-485 filing or three years. Say if some one filed I-485 in 2004 and his last entry was in 2003 USCIS asks for W2 for 2003 and 2004and further. On the hand if the the entry was in 1999 they will request w2 for three years. RFE for the old w2 can be avoided by filing I-485 once you re-enter the US.

I have checked around 25 RFE from our company. All the cases were in this pattern.Maximum number of W2 requested was three years in these cases
 
hi tammy2,

thanks for the information you provided about the periods of w2 are asked for.

Are are you certain that this is the case, because i have heard of people being asked for w2 since labor filing even if they re-entered US after that.
I agree with you that they should check for out of status issues only from date of last entry to us. ( i have read this on some immigration sites)
 
To Conclude

If the Employee does not have pay for less than 180 days USCIS may not even bother to RFE you if they can clearly see you have no questionable period >180 days as 245(k) shall be applicable otherwise.
If the Employee does not have pay for greater than 180 days. Then it is advisable to file the GC after having atleast two good W2. The petitioner can provide such kind of W2's during the 485 filing itself.


If any one had any other experience or Trouble in Paystubs, W2, etc Please share your experience.....
 
josamdee and tammy

If they check out the status issues only from the date of the last Re-entry.
But the re-rentry can vary from one day to many months, years. But still they ask for last three years W2.

Not sure checking the status for so and so months need to be done as per any section's of immigration.
 
Approved

APPROVED TODAY.

Guys,

I got approval email today for my 485 case. Good luck to all and thanks to everyone for sending there response in this forum.
 
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