How long you are eligible to stay after denial

H

hello_me123

Registered Users (C)
Hi

If h1 is expired and you are working on ead and for some reason 140 is denied. Then how long you are eligible to stay here before going back to home country. I know there are diff rules which protects you to stay for 6 mnths like 245 , but only if lab filed before april 2001. Otherwise what is the best option?
while appling he MTR, are you still eligible to work or legal???

please share your thoughts. hopefully this will be helpful to everyone.

Thx
 
You can stay here without any status for a max of 180 days. If you stay for more than 180 days but less than one year then you are not allowed to enter US for the next three years. And if you stay more than one year you are not allowed to come back for 10 years. These are the broad guidelines. There are some finer details which mught be helpful but I don't know much about it. Better consult a lawyer.
 
Hello Unitednations,


What about substitution cases. How long a person can stay after his/her I-140 withdrawn or denied. Does it varies case to case(substiturion and own labor).
If a person files another I-140, can he carry old I485(for which I-140 has been withdrawn/denied) with new I-140 application(service centers may be different).

I appreciate your advise for above circustances. Thanks in advance.

gc4now
 
unitednations said:
labor substitution cases doesn't matter.

There has been a lot of discussion about priority date for labor substitutions. It was finally settled that in labor substitution cases, the beneficiary gets the original labor date.

Why this was so important is that if you were in danger of being out of status and you got a pre-approved labor, if you didn't get the original labor priority date then you wouldn't be able to file a 485 due to retrogression and you would run out of the six months that is afforded under 245k.

However, since everyone gets original labor date in substitution cases then you would be able to file a 485 and the clock would stop on being out of status.

If an earlier 140/485 was denied and you want to file a new 140, you would have to file a motion to reopen on the earlier 485 within 30 days of the date of the denial to link it to the new 140.

If it is past the 30 days and you can't link the old 485 and you are in a hurry to file a new 485, then don't get the medicals done right away. Send in the new 485 and wait for an RFE for the medicals.
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UN,

In the same context as above,

1. what happens if an applicant's 140/485 is pending (for over a year) with Service Center 'A' which was filed based on a EB2 Labor Substitution and then the applicant gets a new I-140 (say its EB3 now in the new PERM process) from Service Center 'B' (restarting the whole LC process and then EB3 I-140), can this applicant interfile the still pending EB-2 485 to the newly approved EB3 I-140.

2. Under this circumstance, what is the priority date for this applicant?? The new LC filing date or the 485 filing date (which is over a year pending).

3. Also, since the new LC is in EB3 category, Can this applicant even try to link the old 485 which was filed based on a EB2 I-140?? If the applicant is from the retrogressed country, he can't file a new 485 at Service Center 'B', so in this situation, what is his best bet?

Kindly comment on this above scenario. Aprpeciate your insight.
 
unitednations said:
I'm going our to eat at an Indian buffet. I will respond in a few hours. :)
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No problem UN. Take your time. Enjoy your lunch. I will check back later in the evening.

Many thanks.
 
UN,

Thank You. Appreciate it.

I still had one question: In the scenario that I mentioned, the previously filed I-140 (based on a EB2 labor substitution) is still in pending status and is not adjudicated yet. The 485 filed concurrently is also pending (FP done, AP/EADs received twice). Employer is not going to revoke the I-140.

Say, I get the new PERM EB3 labor and then subsequently EB3 I-140 approved but the older 140 is still in PENDING status, what is my priority date?? My question now is, do I inherit the priority date of the EB2 labor that was substituted for me during my first I-140 filing.

Here are the timelines to make it more clearer.

1st I-140/485 Concurrent filing: Feb 2004 based on Labor substitution whose PD is Aug 2001.

Now via PERM, EB3 labor filing date: April 1, 2005. Say it gets approved on May 15, 2005.
File EB3 I-140 on May 16, 2005. This new I-140 gets approved on June 30, 2005 (I wish...this comes true).

Now when I try to do a interfiling, what is my PD?? Do I inherit the PD of the first filing (ie PD of the substituted labor which is Aug 2001) OR atleast my original I-140/I-485 filing date which is Feb 2004?? OR is it April 1, 2005 when I filed my PERM labor.

Kindly comment.
 
unitednations said:
priority date doesn't attach until 140 gets approved. Therefore, you can't transfer the eb2 priority date to the eb3 perm unless BOTH 140's are approved.

If both are approved, the eb2 priority date would be 2001 and the eb3 perm would be april 2005. Once you do the transfer of the priority date of the eb2 application to the eb3 application, the eb3 priority date would then be 2001.
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Thanks UN.

So does that mean that I would not be benefited by my earlier I-485 filing date (which is over a year now and will be over one and half years by the time the new I-140 comes along assuming that the older I-140 still doesn't come through).??
 
unitednations said:
no benefit from the old 485 since they can't adjudicate it until the 140 is approved.

once both 140's are approved and you get the earlier priority date then you benefit a little bit in that your priority date won't be retrogressed and the receipt date of your old 485 will be prior to the processing dates of uscis.

key thing is both 140's have to be approved.
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Thanks UN. I hope and pray to get the older one approved...no hassle of even starting the process all over again....
 
How long can a dependent stay ? - UnitedNations Inputs needed

If 485 of a dependent is denied what are the options ? The man applicant is already approved.
 
More Details

Its not criminal or medical reasons.

Just to give more info, the dependant applicant used to work on h1 for approx 3 yrs , later got EAD and continuing to work on EAD.

During the tenure of H1 , there cud have been issues related to taxes. Can this problem be overcome . Moreover can person go from EAD to H1.

Thanks for ur responses
 
unitednations said:
yes, a person can go from ead to h-1. As long as the person was counted towards the h-1 cap within the last six years and has time left then they can go back on h-1. However, uscis would consider it a new h-1, and would probably require the person to go outside of the country to activate it.

out of curiousity, what was the issue with taxes? that might not cause an admissability issue.
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Some More Details:

History with an individual is,

Comes to US on B1 Visa - gets H1 - some desi consultancy - works on H1 - starts own company - H1 of owned company - gets married - hubby applies for GC - dependent starts working on EAD - current 485 is being reviewed for dependent applicant - main applicant is approved

. In all this process there are 3 issues,
a) Out Of Status Period - Transiting from one H1B to another
b) Taxes paid for the company or self may be reviewed
c) Indiviual entered in US on B1 initially

Does USCIS tracks all this , any input on the same is appreciated
 
More Q's

Based on the previous response,
1. On Biographical Information dependent Applicant has maiden name in passport/ h1, in 485 application name is changed to husband last name
2. There has never been any gaps in H1. did not work for 1.5 yrs and did not file for taxes for one year after marriage ,1.5 yrs no payroll can these be reasons for denial

Your response is appreciated.
 
To UN

I think you are right. They do have access to all the information about your immigration history but rarely use it. Appearently they look into what they have in hand ( in your file). As an example. In my NOID they stated that "service has a record" of this and that (basicaly I-94 timeline) but disregarded what actually my attorney laid out as a timeline in the response to RFE and completely ignored F1 status of my wife, which was included with original application, however, an officer pointed out inconsistency in her employment history which was right (that was typo error in G-28).

If they have everything on record, how come he missed evident pieces and ignored the fact that my "out of status" period was covered with the period of " authorized stay" while application was pending and which is covered by several internal memos ( Pearson, 2000; Williams,2003).

Bottom line : they never analyze the case, they rather deny and let your attorney to bring pieces together for them!
 
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