Ginnu/Experts urgen help needed.

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nandpc

Registered Users (C)
I have been a silent reader of this forum for some time. I have concurrently filed for 140/485 April 2004. I485 has been filed for both me and my spouse (I'm the primary applicant). My spouse too is on H1B. His H1 extension was applied in April 2003. He got a RFE on H1 in Dec 2003. The HR person messed up the RFE response (as well as the initial filing) and subsequently the H1 was denied in February 2004. A motion to reopen the case was filed in mid of March (well wihin the 30 days alloted) and that is still pending. Now my questions regarding this are:

- Is my spouse in status or out of status. Can he work while his motion to reopen is pending decision.

- Can that affect our green card in any way.

I will be really thankful to anyone shedding some light on this.

Regards,
nandpc
 
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nandpc said:
I have been a silent reader of this forum for some time. I have concurrently filed for 140/485 April 2004. I485 has been filed for both
me and my spouse (I'm the primary applicant). My spouse too is on H1B. His H1 extension was applied in April 2003. He got a RFE on H1 in Dec 2003. The HR person messed up the RFE response (as well as the initial filing) and subsequently the H1 was denied in February 2004. A motion to reopen the case was filed in mid of March (well wihin the 30 days alloted) and that is still pending. Now my questions regarding this are:

- Is my spouse in status or out of status. Can he work while his motion to reopen is pending decision.
Status wise he is OK. Reason: Pending 1-485
I don't think he can work (guru's correct me if I am wrong) unless EAD is already approved.


- Can that affect our green card in any way.
No


I will be really thankful to anyone shedding some light on this.

Regards,
nandpc
Click to expand...
 
Thanks

Usnycus,

Thanks for your responses. One more question on this. The H1B extension was rejected in beginning of March and I485 was filed in end of April. Was my spouse out of status during that time period. Can this effect our GC in any way?

Thanks,
nandpc
 
What is expiry date on his I-94? First check whether he has overstayed? If the AOS is applied at the time overstay then there might be a problem. Consult good attorney.
 
nandpc said:
Usnycus,

Thanks for your responses. One more question on this. The H1B extension was rejected in beginning of March and I485 was filed in end of April. Was my spouse out of status during that time period. Can this effect our GC in any way?

Thanks,
nandpc
Click to expand...

When does his current H1 expire? As far I understand, his H1 extension is denied, but not his current H1, right? If his current H1 was still valid for the period of March-April, his status is fine.
 
1)Check his original H1 -I94.If it is still valid now,he is OK.
2)If his original I94 expired already but AOS filed before 180 days of expiry of
I94 he is fine(245K).
3)Once above 2) is met,generally OK,but check that to be below 180 days- issue.
4) if 180 days exceeded but finally if H1 extension approved(only) he may be maintaining status. (as it may continue his H1 status with out breaks/or with permissible period breaks in relation to AOS ).
5)With out a H1 and on lawful AOS,he has to get his EAD to work.
Review your exact situation.
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Not a legal advice.Lay man's opinion.
 
Participant said:
1)Check his original H1 -I94.If it is still valid now,he is OK.
2)If his original I94 expired already but AOS filed before 180 days of expiry of
I94 he is fine(245K).
3)Once above 2) is met,generally OK,but check that to be below 180 days- issue.
4) if 180 days exceeded but finally if H1 extension approved(only) he may be maintaining status. (as it may continue his H1 status with out breaks/or with permissible period breaks in relation to AOS ).
5)With out a H1 and on lawful AOS,he has to get his EAD to work.
Review your exact situation.
------------------------------------------------------

Not a legal advice.Lay man's opinion.
Click to expand...


I suspect. 245(K) clears the previous out of status situations. But if some one having an expired I-94 cannot claim 245(k). He has go out of the country and come with new I-94 then only he will be able to claim 245(k). Better to ask attorney. He has applied H1 renewal in March 2003? Is he overstaying I-94 for more then a year?
 
tammy2 said:
I suspect. 245(K) clears the previous out of status situations. But if some one having an expired I-94 cannot claim 245(k). He has go out of the country and come with new I-94 then only he will be able to claim 245(k). Better to ask attorney. He has applied H1 renewal in March 2003? Is he overstaying I-94 for more then a year?
Click to expand...

245K clears the status problem of less than 180 days before filing AOS(previously).
Here the 180 days is aggregate(all combined unlawful presence).
And status problem crops up ,generally with the issue of expired I94s and outo of status.
If some one has expired I94 s/OOS at any time for less than 180 days,before filing AOS--245K is the provision.
I am not sure what you meant by 'previous' out of status.
I94 s should have not been 'expired' more than 180 days ago
or out of status less than 180 days-is the issue.
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Not a legal advice.Lay man's opinion.
 
Hi All,

Thanks a lot for all your inputs. I discussed this issue with my attorney. I'm posting his views here, just in case someone else needs this kind of inputs:

Once the H-1/4 was denied you lost status. While the H-1 was pending you had
legal presence. For the time period between the rejection of H1B and the filing of I485 you were illegal. The filing of the adjustment creates legal presence again. (Note that legal presence is not status. It is not as good). You are allowed to remain in USA until the US CIS makes a final decision on the adjustment. While the adjustment is
pending you are not accruing illegal presence. You are not required to maintain status once the adjustment is filed. In my opinion you are probably safe even if the H-1 is not reopened. The reason I am being guarded is because the law is unclear in this area. I am not terribly worried because it appears that the adjustment provides protection for accrual of illegal presence.
 
Hi NandPC,

AoS pending is a transition status. It is still a legal status which protects the I485 applicants and gives them some benefits like EAD etc.

Legal presence is different. Once you lose your H1B status, you lose the legal status of H1B immediately. But your presence is legal until certain length.


Your spouse is safe, as long as she has EAD to cover her job.

Duke
 
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