GC Denied (Help Pork Chop)

G

GCRejected

Registered Users (C)
Hi,

Once the GC is rejected, is it possible to transfer EAD to H1-B through premium processing ??? Previous to EAD the status was H4.

Thanks for all your help.
 
Once your GC is denied. YOu can appeal that decision with help of a good lawyer. If that fails then I believe it is pack up and go home.
 
If you have been using EAD currently and then your 485 gets denied, you are considered "out of status". In order to be on valid status, you would have to leave the country and reenter with your H1-B. You can start premium processing however you will have to leave the country immediatel following the 485 denial and reenter on H1-B.

Better bet is the not use EAD if there is a fear of denial. Hope this helps.
 
Dear GCRejected...

yours was a case of denial due to a mixup of i140, where an amendment to the i140 was filed. i can't recall if your i140 amendment was approved or not. if it has been approved, get your lawyer to file another i485 on its basis ASAP, since the old i485 is closed. this should get you back in status. your lawyer might also pursue, in ADDITION TO ABOVE, the option of reopening the old i485 by substituting the old i140 with the newly amended one; if successful, then the new i485 could be withdrawn.

that still leaves the question of your current status. if you have been working on H1B, then that status is intact, and you have nothing to worry about. if you were working on EAD, then your are out of status. however, there is still ways to address that: if you search for applicable laws, then you will find that one of the reasons for any out of status time that had accrued can be forgiven is if that accrual was due to a mistake on the part of the INS/BCIS; but your lawyer has to make a case for that once that question comes up.

the other option, if your H1B is not valid, could be to file your new i485 under 245[k] (NOT 245): this is for smaller violations of status (less than 180 days), and does not have any cutoff dates (like 245 does). will set you back $1,000, but that is insignificant now, given the circumstances. while it is true that your out of status time, if any, is due to INS's blunder, but it might still be worth your while to buy some protection first, (in the form of 245[k]), then go about proving that it was not your fault in the first place, or have your old i485 reinstated.

please discuss these options with your lawyer first. it might be a good idea to also get a second opinion from another lawyer, especially if you think that your current lawyer is not quite up to par for this course. in any case, in cases such as i485 denials, PLEASE employ the services of a good lawyer. don't try to handle it yourself. that is the sincerest advice i, or anyone else, could give you.

we all wish you the best of luck!
 
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Thanks for the suggestion.

My I-140 Amendment was already approved 2-3 mnths back.

My lawyer is very positive that INS/BCIS would correct the mistake. But I am running out of time.

I am still working on H1-B but my wife is working on EAD.

I still have not received any EAD Denials or any notice from INS/BCIS that we should stop working on EAD. I was told that once 485 is Denied the EAD is also Denied and a notice is send to the applicant. Is that true???

And can we file for a H1-B premium processing right now. That is change of status from EAD to H1-B for my wife. I have a company who is ready to file for H1-B premium processing. Does my wife need to leave the country to enter on H1-B??

The EAD and her previous H4 both are valid for another 3 months.

Thanks.
 
first of all, it is good to hear that you are working on H1, so you are not out of status. be sure to apply for H1 renewal before your H1 period runs out, regardless of whether your i485 has been refiled/reopened.

as for your wife, there's a couple of theories about an H4 status person working on EAD. one says that, while using EAD does invalidate your H1 status, it has no effect on H4 status, since H4 is not a work permit. on the other hand, since the original i485, which was the basis of your wife's EAD has been denied, the EAD too has lost its validity, therefore your wife should not continue to work to be on the safe side. by all means file for her H1 under premium processing to minimize her period of unemployment, but keep in mind that she cannot work until her H1B is approved; one could work with an H1B extension app pending, but not with an app for a new H1B pending. also, get your lawyer's opinion on whether any unauthorized employment time that might have accrued in your wife's case could be a problem, and if so, what could be done to mitigate that.

as for your i485, in case you lawyer is trying to have your old i485 reinstated (which is a good idea, since it will preserve your RD/ND priority), i would recommend that you set a cut-off date with your lawyer: if your old i485 has not been reinstated by that date, file a new i485. by all means continue trying to revive your old i485, and if successful, withdraw the new one. just keep in mind that this too can be a risky procedure, as the same officials who screwed up your earlier case are going to be the ones doing this as well. in these forums, somebody had reported that when his lawyer requested withdrawal of their new i485 as their old i485 was reopened, the bright sparks at BCIS cancelled *both* the old and new i485s!

bottom line: you are in pretty good shape, with options available to you, and not out of status.

good luck!
 
Another twist in story.

Today our EAD renewal says that a RFE has been issued. Does that mean that the EAD is still valid?? As they did not denied it but send a RFE.

Any thoughts Pork Chop.
 
Million Dollar question.

If 485 is Denied then does the person who entered on AP has to leave the country?? What if the previous H4 visa is valid.

I am gonna take advice from a lawyer but any thoughts are more than welcomed.
 
i confess i am just thinking out aloud when i say this, and you should get your lawyer's opinion, but here goes:

AP is relevent really at the time of entry into the u.s... and if you use AP to enter, you are admitted as a parolee. but it also has been said that merely entering on AP does not invalidate your H1/H4 status (using EAD would invalidate your H1 status), therefore one could conclude that if your nonimmigrant status (H1/H4) is still valid, then your parolee status is a "parallel" status. assuming that the basis of your AP (i.e. your AOS) coming to an end will also end your parolee status, you still have your nonimmigrant H1/H4 status to fall back on.

we had discussed earlier if your wife's H4 status is invalidated by her use of EAD (arguments either way)... this is something also you need to confirm with your lawyer.

as far as the EAD RFE is concerned, could it have been issued prior to the i485 denial (and the AVM/online status got updated late)? if so, perhaps your wife still should not take a chance by continuing to work on it. if her employer is willing to go through H1B premium processing for her, go with that. err on the side of caution, and don't accept wages on EAD.

GCRejected, i must emphasize that these are just my thoughts. please don't make up your mind simply on the basis of these. go with what your lawyer tells you.

keep us posted, and good luck!
 
Thanks the help Pork. I consulted a laywer and got all my questions cleared.

I really appreciate your help.
 
GC Rejected,

It would greatly help others here if you could share the results of your discussion with your lawyer and the courses of action open to you. Of-course, you want to keep the details out to protect your privacy, but such feedback will help calibrate the views of folks here, and improve the quality of advice available in these forums.

Good Luck.
 
i heartily second Sankrityayan. please do share with us as much as you will the fruits of your discussion with your lawyer.

thanks!
 
GCRejected: Can you share your discussion that you had with your lawyer?

GC Rejected:

Can you share your discussion that you had with your lawyer?

I am exactly in the same situation. The worst part me & my spouse both are on EAD. we are very much tensed up..

Did you get your old I-485 back or do you have to file new I-485?

I filed I-140 Amendment in May 2002 for company name change but tax_id same. Filed I-485 in May 2002.

In May 2003, I got RFE for I-140 Amendent. we replied RFE and received by VSC on 3rd, June 2003.

On 14th June 2003, I received letter from VSC that they denied my I-485. I am really tensed help.. please help with your experience.

Thanks lot
 
while on EAD, if I-485 is rejected then

is there a room for appeal from inside the courtry or definitely need to go outside the country? In this case if no H1 is valid and are on purely on EAD. Any thoughts? How about the "intent to denial" cases? are they different?
 
Hi Anamica,

First of all, File MTR(Motion To Reopen) as soon as possible. You have 30 days to file. Do you have a lawyer, if not then hire one. Once your MTR is filed I think you should be safe till a decision is made on that Motion.

Did you replied to the RFE or you had your lawyer reply to it???

Could you please talk to your lawyer whether there is a law that filing a I-140 Amendment could result in a 485 denial. please update.

Don't worry everything will be fine.

Thanks,

This is my personal opinion and I am not a lawyer.
 
Hi,
There are 3 options.

Option 1 ) you could either file a new I-485, but in that scenario you will have to stop working on the EAD and if you have entered on AP , you will need to leave the country and come back on other visa.

Option 2 ) File MTR. In this scenario you would be legal till the they decide on the Motion.

Option 3) Both 1 and 2.

I am in the Option 2 Scenario. But i am working on H1-B and my wife is on EAD.

Please file your MTR as soon as possible if you decide on Option 2 or 3

Thanks,
Joyin

This is my personal opinion and I am not a lawyer.
 
joyin55 .... see more details beow

joyin55:

Thanks for reply..

I am doing everything thru lawyer.

But problem here only myself received I-485 denied letter on Jun 14,2003.

My lawyer did not receive anything till now.. and also AVM for I-485, EAD, AP , I-140 Amendment, Previous Approved I-140 showing same old messages .. no change in info with this denial letter.

I contacted paralegal person in my attorney office.
They said they can't do anything until they receive letter to their office ..
Tomorrow i.e 17 Jun 2003 , paralegal person going to talk to lawyer .
I will update after getting update from lawyer..

joyin55: can you give why you have appeal for MTR? can you give me your case details..

I am worried with my situation..

If anybody has this kind of experience, can you share your thoughts here..

Thanks for your reply..
 
Hi Anamica,

Once 485 is denied, you need to file a motion to reopen your 485 case, specially if it is a INS mistake.

I am in the same boat, filed a MTR. Company merger took place. I-140 Amendment filed, that got approved but suddenly one day 485 got denied which wrongly stated that my I-140 was revoked.

What does your denial say??

I know this is the worst situation one could go through, I am in the same situation but don't worry, talk to your lawyer, ask him about the details and the options and what does the law say??

My lawyer suggested the option to file MTR as he thinks this is INS mistake.

Please let me know what does your lawyer suggest.?

Thanks,
Joyin55

This is my personal opinion and I am not a lawyer.
 
Joyin55: see the details below

Joyin55:


I-1485 is denied because

Here you see INS words:


"The immigrant visa petition filed in your behalf by company 'X' was denied"

I asked my lawyer meaning of above they said it indicates I-140 denied ..


I know my company won't revoke my I-140 ...

My I-140 Amendment still pending after receiving RFE response on 03 Jun 2003(RFE for legal documents to show merger)..

I guess INS might have messed up approved I-140 & I-140 Amendment .

Can you give me your I-140, I-140 Amendment , I-485 RD, ND & AD details.. And also date when you got your denial letter and when you applied for MTR..

BTW my case is from VSC what about yours?

Thanks lot
 
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