I-485 denial due to H-1B job gap possible?

M

mat49900

Registered Users (C)
Hi wise ones!

Check this one out.

- June 2001: kicked out of job :(
- December 2001: new job starts. H-1B applied in June itself. But H-1B approved in November.
- November 2001: Went to India for vacation from sitting in apartment doing nothing :)
- Dec 28 2001: new job begins

Current state: LC approved. Will apply for I-485/I-140/AP soon. But I am worried I-485 denial might occur as experience letters show gap of 6.5 months. Fortunately no I-94 expiration problems.

What do you guys think?

Thanks in advance!
 
Fortunately no I-94 expiration problems.

---- I dont see problem, GC is for future job
 
Originally posted by ginnu
I dont see problem, GC is for future job
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There may be a problem in that once he lost the first job, he was out of status. On what EXACT dates was the first job finished and you left the US on vacation?
 
Job kick out: June 14, 2001
India vacation: Nov 24, 2001
Return: Dec 28, 2001

One job experience letter say upto June 14, 2001; another say from Dec 28, 2001. A yawning gap in the middle. :(

Please remember: I have no I-94 expiration issues. My I-94 was valid upto April 2004 right back in June 2001. I was 'out of status' but no 'unlawfully present'.
 
Originally posted by mat49900
Please remember: I have no I-94 expiration issues. My I-94 was valid upto April 2004 right back in June 2001. I was 'out of status' but no 'unlawfully present'.
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Yes, but for the purposes of I-485 eligibility, the two are considered the same. Either way, you have less than 180 days of out of status time (barely) so you should be covered under 245k. Make sure you can prove you left the US on the date you did. Keep your ticket stubs and any evidence of departure from the US before the180 days.
 
Ok, I will need to get hold of those things...though my passport should have a stamp to that effect.

You said 'out of status' and 'unlawfully present' are same. Is that out of what you have seen happen to others or is it based on some document you have seen?

Also is CP the right thing to do in this case? Is it safer? Can you do CP in case of 7th year extension? (I am going to have to take 7th year extension soon.)

I appreciate your inputs.
 
Originally posted by TheRealCanadian
Yes, but for the purposes of I-485 eligibility, the two are considered the same. Either way, you have less than 180 days of out of status time (barely) so you should be covered under 245k. Make sure you can prove you left the US on the date you did. Keep your ticket stubs and any evidence of departure from the US before the180 days.
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If they were viewing it seriously then the people who are getting H1 approvals without I-94 would not have come back with new stamping. Even people without a job for year came back on new H1 stamping. if illegal stay and maintaining job (their by status) are same then they should have been barred for 10 years
However If the company has not revoked H1 there is slim chance that CIS will come to know about loss of status.
 
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Won't they come to know about loss of status just by looking at my experience letters wherein there is a gap of 6 months?

I mean, apart from experience letters, they make us write your previous job experience on I-485 etc and from that form, they can easily make it out, right?
 
Use Section 245(k). You will have no issues. There are some good threads on that. Use my name for search and you can find it. Basically section 245(k) says that since your last lawful entry, you should not be out of status for more than 180 days or worked illegally for more than 180 days. Consult your attorney on 245(K). (Actually, 245(K) was originally made for employment based adjustments for cases just like yours). I really don't know if 245(k) specifically overcomes unlawful presence, but as you don't have any, you are good to go.

In case you are ineligible for AOS, CP is the only option.
 
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No gap in I-94 = no illegal presence = no overstay = no mandatory bar to reentry = no likely problem and no need for 245k or 245i. Failure to maintain proper status is NOT the same as illegal presence.
 
Originally posted by Jim Mills
No gap in I-94 = no illegal presence = no overstay = no mandatory bar to reentry = no likely problem and no need for 245k or 245i. Failure to maintain proper status is NOT the same as illegal presence.
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A)As per:http://murthy.com/arc_uds/UDpenout.html:

Penalty Fees Paid By Employment Based Applicants Out of Status for Less than 180 Days

On March 20, 1998, the Jacquelyn A. Bednarz, the Acting Assistant Commissioner of INS issued

a Memorandum clarifying the new section 245(k) of the Immigration and Nationality Act.

Section 245 (k) provides that certain adjustment of status applicants who were lawfully admitted to the United States and who are eligible to receive an employment based immigration visa in one of the first three employment based categories or as a religious worker, are now eligible to apply for adjustment of status without payment of the penalty fees; provided that subsequent to the admission to the U.S. such a person has not, **for an aggregate period of more than 180 days, **1)failed to continuously maintain a lawful status, engaged in unauthorized employment, or**2) otherwise violated the terms and conditions of their admission.
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B)As per:http://uscis.gov/graphics/howdoi/h1b.htm:

What if the alien’s circumstances change?

**3)As long as the alien continues to provide H-1B services for a U.S. employer, most changes will not mean that an alien is out of status

Must an H-1B alien be working at all times?

**4)As long as the employer/employee relationship exists, an H-1B alien is still in status.
An H-1B alien may work in full or part-time employment and remain in status. An H-1B alien may also be on vacation, sick/maternity/paternity leave, on strike, or otherwise inactive
without affecting his or her status.
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FROM ABOVE,
A)1) Mentions about fail to maintain 'lawful status'2)mentions about 'terms and conditions'.
An H1B is admitted under 'terms' he need to serve the employee sponsored continously to be in status.?
Does B)3) and 4) stipulates the terms.
Then if one is not in 'status'(Not providing services to the employer)for less or equal to 180 days,not sure whether it is tantamount to un'Lawful status'for 180days and 245(K) is not
attracted?
Any further thoughts,please.
 
I would imagine that not working for your H1B employer (or going on unpaid leave) will make you go "out of status". Just like working while on visitor visa or working outside the school while on F1 without USCIS permission. Meaning you have to use 245(k) to be eligible for AOS. Jim, can you please clarify why 245(k) is not needed, because the way I see it, the guy was out of status for some time and normally he is ineligible for AOS, unless he uses 245(k) or some other waiver.
 
If any one overstays his I-94 will not be given the visa. If it is more then six months he will be barred from entering US for 3 years. If the over stay is more then one year he will barred for 10 years. To come back to US they need to apply for wavier.

IF if some one does not have the pay slips CIS approve the H1(Even without I-94). If it is illegal then they should have started proceedings of deportation. Instead they are allowing him to come back after stamping. Even consulate is stamping. If if some one over stays even 10 days he will not get the visa next time.

245(K) is meant for some one who worked illegally without proper authorization or overstayed his I-94 for less then six months then applied I-485.

Just check last sheela Murthy's Chat She was mentioning about this.
 
Thanks guys for all the interest. Even though with divergent, even conflicting opinions, I can only conclude that the law is not clear on this point.

I want to clarify that after leaving on Nov 2001 for India vacation, I left again and came back on Nov 2002-Dec 2003. I don't know if this helps my case any.
 
Originally posted by tammy2


245(K) is meant for some one who worked illegally without proper authorization or overstayed his I-94 for less then six months then applied I-485.

Just check last sheela Murthy's Chat She was mentioning about this.
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Tammy2, thanks for clarifying that, nobody seemed to know if 245(k) "cured" overstays. But it makes sense. If overstay less than 180 days, no bars to reentry. So leave country before 180 days and come back in lawfull status and use 245(k). If more than 180 days, you are anyways barred to enter, so 245(K) is useless anyways.
 
Originally posted by jllag1
Tammy2, thanks for clarifying that, nobody seemed to know if 245(k) "cured" overstays. But it makes sense. If overstay less than 180 days, no bars to reentry. So leave country before 180 days and come back in lawfull status and use 245(k). If more than 180 days, you are anyways barred to enter, so 245(K) is useless anyways.
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But once you over stay then attorney usually suggest not go out of country, as it is very difficult get visa and come back.

If you stay here you can make use of rules such as 245(k) do the AOS.
 
There is a difference between not properly maintaining your status (i.e. not working for the H-1 sponsoring employer) and being Out of Status and accumulating overstay (i.e. having an expired I-94).

The first renders you deportable for not maintaining your status but remaining in the US while not maintaining your status does not accumulate overstay towards triggering the 3/10 bar.
 
overstay (i.e. having an expired I-94).

My H1B visa in my passport and I-94 expired on March 16th. But I have valid I797 (H1B approval notice) valid until April 2005 and I485 pending since June 2003. Does this mean I have overstayed?
 
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