Help! --- Is my wife not eligible for I485?

C

caiyw

Member
Guys,

My wife graduated from school in 2000 and started to use her OPT to work, her employer later sponsored her H1b visa. However; her H1b was approved 38 days AFTER her OPT expired (although H1b receipt date was BEFORE the OPT expiration date), but she didn't stop working during that 38-day gap. Her lawyer said it should be OK at that time, but now USCIS is asking us to prove her legal status (among other things inI-485 RFE, like EVL, Affidavit of support, etc), please advice:

1) Will my wife be considered out of status because of that 38 day gap?
2) Will this gap cause any problem for her I-485 case?

Thanks a lot!
 
caiyw001

Whenever such a case had risen at our company, we ask that the employee discontinue work and officially be struck off the rolls and will be included again, once the H1-B is approved. A mere pending of H1-B doesn't offer any legitimacy to the legal status under which one can work. If the applicant already had a H1-B and is either transferring or renewing H1-B, that is considered to be legit. However, in this case, the applicant was not having a H1-B for the 38-day period cited. Therefore, she was working without proper work authorization documents for that period. That is what has triggered INS to seek clarification on the legal status for that period, I think.

I am sure, this is not a big deal, given the fact that it is less than 180 days. At the most you need to pay $1000 under § 245(i), I would think. Please seek attorney's advice.
 
How should I handle 245i?

Poongunranar,

Thanks for the advice, could you shed some light on how to handle this situation as my case is entirely self-petitioned. Do I need to file a specific form to claim 245(i) or just writing a statement to mention 245(i) and attach $1000 be enough?

Thanks again,
 
caiyw001 said:
Guys,

My wife graduated from school in 2000 and started to use her OPT to work, her employer later sponsored her H1b visa. However; her H1b was approved 38 days AFTER her OPT expired (although H1b receipt date was BEFORE the OPT expiration date), but she didn't stop working during that 38-day gap. Her lawyer said it should be OK at that time, but now USCIS is asking us to prove her legal status (among other things inI-485 RFE, like EVL, Affidavit of support, etc), please advice:

1) Will my wife be considered out of status because of that 38 day gap?
2) Will this gap cause any problem for her I-485 case?

Thanks a lot!
Click to expand...
1)Yes
2)Mostly no.(dependes on other periods).
Did you mention the correct legal stays in G-325 (biographic farm)?check your copy,probably this 38 days is figured there.Hence CIS may be asking to confirm this period.
If the illegal presence/work is only 38 days(if it is only one) which is less than 180 days,
seems,this will be OK under section 245 K.Section 245 i may not be valid now
and may not be warranted. Contact your attorney and mention 245 k,and submit all other docs. showing proof for legal stay for other period.
It may be OK.
 
According to the valid period of her work card and H1-B I-94. Your wife appears to be out of status. Did you mention in your biographic information form (G325)? I would suggest you find a lawyer to file for you. It's very frustrate when such a long wait is coming. It's worthy to find a lawyer.

If you need more information about 245(i)(k), and wanted to file by yourself, please check:

http://uscis.gov/graphics/formsfee/forms/i-485supa.htm

http://uscis.gov/graphics/services/residency/obl25.htm#anchor164766

http://www.murthy.com/adjsta.html

Hopefully this will help. Please post the result to help the other people have the same problem. I saw some people with less than 180 days gap got approval.

http://boards.immigrationportal.com/showthread.php?t=138536&page=1&pp=15&highlight=245i+1000
 
I think if you find a good lawyer, he should be able to help you out. There's something called "in good faith"...meaning when you applied for your wife's H1 it was in good faith and you didn't anticipate INS would take so long to issue her h1. Now the question how long before her OPT expired that you applied for her h1? And did you do premium processing?

A good lawyer can turn your life around.........have faith in the loopholes in the system.....

My two cents.....
 
the lawyer says 245(k) is the one to go

Thanks guys for all the advice, really appreciate it.
I just talked to a lawyer, he basically says:

(1) my wife is never out of status
(2) use 245(k) to cover the 38 days of her unauthorized employment, there is no form to fill out, no penalty, just mention that in my cover letter in reply of RFE.

Will keep your guys posted, good luck to us all!
 
caiyw001 said:
Thanks guys for all the advice, really appreciate it.
I just talked to a lawyer, he basically says:

(1) my wife is never out of status
(2) use 245(k) to cover the 38 days of her unauthorized employment, there is no form to fill out, no penalty, just mention that in my cover letter in reply of RFE.

Will keep your guys posted, good luck to us all!
Click to expand...

Like I said before, I don't think your wife was out of status. That is, her presence in the US was legal (though she made it quasi legal by working without authorization), because of the pending application.
Like other people here said, her unauthorized work was less than 180 days, so that's nothing to worry about, except that you ought to be truthful about it in your/lawyer's reply to RFE.
Good luck!
 
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