I-485 denial (potential fraud reason)

R

RajThomas77

Registered Users (C)
Hi there,

I got a denial notice today for my I-485 with an inexplicable reason -- fraud or misrepresentation. This is a shocker to me.

I came through L-1 on company A in Sep 2002 (I-94 valid till Sep 2005).

Status change to H-1B (company B) in Feb 2003 (I-94 valid till Feb 2006). Despite the status change, not knowing that I have to start working for company B immediately, continued employment with company A. I never worked for company B. After realizing the mistake, Status change to H-1B (company A) in Nov 2003. This petition with all evidence was filed by a very popular law firm (I-94 valid until Nov 2006)

Currently on H-1B (company C). Company C filed Green card petition (I-485).

I travelled outside of US and came back on new H-1B Visa earlier.

I received a RFE to prove that I was in authorized employment between February 2003 and November 2003. Since I had the L-1 to H-1B status problem, I mentioned that I continued to work for L-1 employer even after COS to H-1B. Then I got another RFE stating how could I change status to H-1B in November 2003, when I continued working for L-1 employer (company A) even though the status was changed to H-1B (company B) in Jan 2003. I responded with the following facts (and copies from 2003 H-1B filing):

-- In the I-129 form, Part 4, for question "within the past 7 years have you ever been given H-1B classification", the attorney mentioned it as Yes and supported the fact by attaching an Addendum -- "Mr. ABC held L-1 status since Sep 2002; Status changed to H-1B in Feb 2003, but he never took up employment with the petitioner"
-- In the I-129 Supplement, the same description as above, i.e., "Mr. ABC held L-1 status since.........never took up employment with the petitioner" was mentioned
-- In the covering letter, the same description as above was mentioned.
-- I have attached the I-797 approval notice from Company B, but pay slips from Company A (obviously, since I never worked for company B)

During I-485 processing, I got the response that it was mentioned in I-129 form, Part 3, that my "current non-immigrant status" as L-1, whereas my status was H-1B from Feb 2003. This, according to them, is "fraud or misrepresentation". I am really shocked and scared now.

Can someone please help providing guidance. Why this could have happened, next steps, etc.
 
RajThomas77 said:
Hi there,

I got a denial notice today for my I-485 with an inexplicable reason -- fraud or misrepresentation. This is a shocker to me.

I came through L-1 on company A in Sep 2002 (I-94 valid till Sep 2005).

Status change to H-1B (company B) in Feb 2003 (I-94 valid till Feb 2006). Despite the status change, not knowing that I have to start working for company B immediately, continued employment with company A. I never worked for company B. After realizing the mistake, Status change to H-1B (company A) in Nov 2003. This petition with all evidence was filed by a very popular law firm (I-94 valid until Nov 2006)

Currently on H-1B (company C). Company C filed Green card petition (I-485).

I travelled outside of US and came back on new H-1B Visa earlier.

I received a RFE to prove that I was in authorized employment between February 2003 and November 2003. Since I had the L-1 to H-1B status problem, I mentioned that I continued to work for L-1 employer even after COS to H-1B. Then I got another RFE stating how could I change status to H-1B in November 2003, when I continued working for L-1 employer (company A) even though the status was changed to H-1B (company B) in Jan 2003. I responded with the following facts (and copies from 2003 H-1B filing):

-- In the I-129 form, Part 4, for question "within the past 7 years have you ever been given H-1B classification", the attorney mentioned it as Yes and supported the fact by attaching an Addendum -- "Mr. ABC held L-1 status since Sep 2002; Status changed to H-1B in Feb 2003, but he never took up employment with the petitioner"
-- In the I-129 Supplement, the same description as above, i.e., "Mr. ABC held L-1 status since.........never took up employment with the petitioner" was mentioned
-- In the covering letter, the same description as above was mentioned.
-- I have attached the I-797 approval notice from Company B, but pay slips from Company A (obviously, since I never worked for company B)

During I-485 processing, I got the response that it was mentioned in I-129 form, Part 3, that my "current non-immigrant status" as L-1, whereas my status was H-1B from Feb 2003. This, according to them, is "fraud or misrepresentation". I am really shocked and scared now.

Can someone please help providing guidance. Why this could have happened, next steps, etc.
Click to expand...

you need to see a good lawyer with all your details and copy of all the documents that lawyer submitted to USCIS
 
Thank you. I am in the process of doing that as swiftly as I can, but can you please help with some guidance as to why this could have happened. Sorry, but I just want to have some background if that is possible.

I have never been on bench or anything like that in my entire employment history. Also, my employment was always with Fortune 500 companies, not sure if that would matter, but I cannot keep myself reminded of the fact that I never had the "bench problems" that some people have working for consulting companies.
 
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RajThomas77 said:
Thank you. I am in the process of doing that as swiftly as I can, but can you please help with some guidance as to why this could have happened. Sorry, but I just want to have some background if that is possible.

I have never been on bench or anything like that in my entire employment history. Also, my employment was always with Fortune 500 companies, not sure if that would matter, but I cannot keep myself reminded of the fact that I never had the "bench problems" that some people have working for consulting companies.
Click to expand...

"During I-485 processing, I got the response that it was mentioned in I-129 form, Part 3, that my "current non-immigrant status" as L-1, whereas my status was H-1B from Feb 2003. This, according to them, is "fraud or misrepresentation".

who sent the I-129? if lawyer sent it then go to your lawyer and seek legal advice.
 
Hi Ginnu,

I have already contacted the previous attorney (who filed the case in 2003), but I am not getting an affirmative response. This was the reason why I submitted my case in the portal, to understand a little bit of background before I contact someone else. I would have NEVER intended to defraud the system by any means, so I just want to know if the denial was erroneous and so what I need to do to overcome the situation.
 
Thank you for your response. Okay, supposing I was indeed not in status during that timeframe, why was the H-1B COS approved when it was filed after that timeframe. Also, I (should I rather say the attorney) submitted all evidence accurately in multiple supporting artifacts (such as I-129 supplement, Cover sheet, etc). Why were they considered at that time and I was excused, but now it became a problem?
 
RajThomas77 said:
Thank you for your response. Okay, supposing I was indeed not in status during that timeframe, why was the H-1B COS approved when it was filed after that timeframe. Also, I (should I rather say the attorney) submitted all evidence accurately in multiple supporting artifacts (such as I-129 supplement, Cover sheet, etc). Why were they considered at that time and I was excused, but now it became a problem?
Click to expand...

It can be your or your lawyer mistake and USCIS has discovered it now. If in past USCIS made mistake for your H1 or L1 approval and you are your lawyer knew it then you should have got is corrected by writing to USCIS or you could have entered US again on valid status before filing I-485. you need a good lawyer.
 
RajThomas77 said:
Thank you for your response. Okay, supposing I was indeed not in status during that timeframe, why was the H-1B COS approved when it was filed after that timeframe. Also, I (should I rather say the attorney) submitted all evidence accurately in multiple supporting artifacts (such as I-129 supplement, Cover sheet, etc). Why were they considered at that time and I was excused, but now it became a problem?
Click to expand...

USCIS makes decisions inconsistently.... Might be different IOs adjudicated your I-129 and I-485 applications....Better go to very proficient attorney and explain them everything.....first of all you have to file MTR immediately....

There are lots of different ways your case can arguable by attorneys.....very good documentation will resolve your case....

As long as you were not involved in any criminal activities, USCIS or DOJ will excuse your minor mistakes.....

hope your argument will convince USCIS....
 
ginnu said:
you could have entered US again on valid status before filing I-485.
Click to expand...

If he entered US on valid status before filing I-485, does it voids all previous "out of or illegal or unlawful status" ? Then why USCIS is sending RFEs about status since first entry in many cases ?
 
clear485 said:
If he entered US on valid status before filing I-485, does it voids all previous "out of or illegal or unlawful status" ?
-----------------------------If he should have gone out of US after his out of status or unauthorized work and would have got new I-94 and attached copy of latest I-94 (front and back) at the time of I-485 filing he should have been ok.

Then why USCIS is sending RFEs about status since first entry in many cases ?
--------------------------Every case is different.
Click to expand...
------------
 
RajThomas77 said:
Hi Ginnu,

I have already contacted the previous attorney (who filed the case in 2003), but I am not getting an affirmative response. This was the reason why I submitted my case in the portal, to understand a little bit of background before I contact someone else. I would have NEVER intended to defraud the system by any means, so I just want to know if the denial was erroneous and so what I need to do to overcome the situation.
Click to expand...

Was your LC filed before April 2001???
 
During I-485 processing, I got the response that it was mentioned in I-129 form, Part 3, that my "current non-immigrant status" as L-1, whereas my status was H-1B from Feb 2003. This, according to them, is "fraud or misrepresentation". I am really shocked and scared now.
Click to expand...
Not every misrepresenting a material fact is a fraud. You will need to prove you did not benefit from lying. Whether you were in H-1 status or in L-1 status, that did not give you any advantage one over another in terms of submitting I-485 form or for other purposes, and that is why it did not make any specific sense for you to provide fraudulent information. That is supposed to be your defence during the appeal (motion to reconsider) and possibly in court to eliminate this reason for denial from your records.
You I-485 will be denied anyway, because you worked without authorization for more than 180 days. But you will be able to do CP instead, if fraud reason for denial is eliminated.
Actually, February through November could be less than 180 days. You have to exclude weekends and vacations, as well as other days you did not work. Can you count how many days you worked illegally?
 
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But I did reenter US after that status violation problem multiple times, so I am guessing I should have been covered under 245(K)
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You reentered on what visas and when?

Actually, can you provide complete chronology for all events like this
- all status changes
- all employments (beginnings and ends)
- all visas obtained at the consulates abroad
- all entries to US (with mentioning of what visa you used to enter US).
 
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I apologize, I was attending some family health needs during the weekend. Thus the delay. Please see details below.

(1) Company A, L-1 Visa: Entered US on Sep 2002, I-94 valid till Sep 2005, I was never on bench

(2) Company B filed for a new H-1B Change-Of-Status petition. Approved in Feb 2003, I-94 valid till Feb 2006.

%%%%%%%
Never worked for Company B
%%%%%%%

(3) Mistake realized and Company A filed for a new H-1B petition in Nov 2003 (by consulting a reputed law firm). Please see H-1B filing details below:
-- In the I-129 form, Part 4, for question "within the past 7 years have you ever been given H-1B classification", the attorney mentioned it as Yes and supported the fact by attaching an Addendum -- "Mr. ABC held L-1 status since Sep 2002; Status changed to H-1B in Feb 2003, but he never took up employment with the petitioner"
-- In the I-129 Supplement, the same description as above, i.e., "Mr. ABC held L-1 status since.........never took up employment with the petitioner" was mentioned
-- In the covering letter, the same description as above was mentioned.
-- I have attached the I-797 approval notice from Company B, but pay slips from Company A (obviously, since I never worked for company B)
-- In the I-129 form, Part 3, it was mentioned that my "current non-immigrant status" is L-1

Company A's H-1B was approved, I-94 valid until Nov 2006, never on bench

(4) Company C filed for H-1B COS in Nov 2005 (new employment). Approved, never on bench

(5) Left US in Dec 2005 and returned in Jan 2006; Got a new H-1B visa stamped at the US consulate
(6) Left US in Mar 2006 and returned in Mar 2006
(7) Left US in July 2006 and returned in Aug 2006

(8) Company C filed for LC (Priority date Apr 2006), I-140 (approved) and I-485 (denied, please see above).

(9) Company C filed for H-1B EOS in Jan 2007, approved

I was doing some research over the Internet and there is this "Efren Hernandez memo", which states that in the event of a L-1 to H-1B status change, both petitions continue to be arguably valid, unless either of them revoked it. Does that then mean that I have not violated status during Feb 2003 through Nov 2003 ?
 
RajThomas77 said:
I apologize, I was attending some family health needs during the weekend. Thus the delay. Please see details below.

(1) Company A, L-1 Visa: Entered US on Sep 2002, I-94 valid till Sep 2005, I was never on bench

(2) Company B filed for a new H-1B Change-Of-Status petition. Approved in Feb 2003, I-94 valid till Feb 2006.

%%%%%%%
Never worked for Company B
%%%%%%%

(3) Mistake realized and Company A filed for a new H-1B petition in Nov 2003 (by consulting a reputed law firm). Please see H-1B filing details below:
-- In the I-129 form, Part 4, for question "within the past 7 years have you ever been given H-1B classification", the attorney mentioned it as Yes and supported the fact by attaching an Addendum -- "Mr. ABC held L-1 status since Sep 2002; Status changed to H-1B in Feb 2003, but he never took up employment with the petitioner"
-- In the I-129 Supplement, the same description as above, i.e., "Mr. ABC held L-1 status since.........never took up employment with the petitioner" was mentioned
-- In the covering letter, the same description as above was mentioned.
-- I have attached the I-797 approval notice from Company B, but pay slips from Company A (obviously, since I never worked for company B)
-- In the I-129 form, Part 3, it was mentioned that my "current non-immigrant status" is L-1

Company A's H-1B was approved, I-94 valid until Nov 2006, never on bench

(4) Company C filed for H-1B COS in Nov 2005 (new employment). Approved, never on bench

(5) Left US in Dec 2005 and returned in Jan 2006; Got a new H-1B visa stamped at the US consulate
(6) Left US in Mar 2006 and returned in Mar 2006
(7) Left US in July 2006 and returned in Aug 2006

(8) Company C filed for LC (Priority date Apr 2006), I-140 (approved) and I-485 (denied, please see above).

(9) Company C filed for H-1B EOS in Jan 2007, approved

I was doing some research over the Internet and there is this "Efren Hernandez memo", which states that in the event of a L-1 to H-1B status change, both petitions continue to be arguably valid, unless either of them revoked it. Does that then mean that I have not violated status during Feb 2003 through Nov 2003 ?
Click to expand...

I think you have a good chance. As I remember, USCIS must check the status or work authorization violation since your latest entry. If you are properly inspected and admitted with valid visa and maintained the status since your last entry (prior to filing 485), you should be O.K. Past violation (infact you did not do) should not matter. (It is silly to consider all the past violatons, for example, what if a 6 months baby violates the status in H4 and leaves the country in 2 years comes to US after 25 years in H1B visa, will they deny the 485 for that baby as it is violated the status 25 years back.. it is silly)

You never violated status in 2002 too. You had a vaild status and work authorization from two companies. One is H1 and one in L1. Selcting H1 or L1 is totally your wish. Just mere approval of H1 petition with company B will not violate the your working status with company A, as it is neither revoked by USCIS nor your L1 sponser. As long as you had a vaild work authorization with company A (for the period of the misrepresentation ) you were working legally for A. Therefore it is not a misrepresntation. Find a good lawyer to reconder/challange the USCIS determination.
 
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You never violated status in 2002 too. You had a vaild status and work authorization from two companies. One is H1 and one in L1. Selcting H1 or L1 is totally your wish. Just mere approval of H1 petition with company B will not violate the your working status with company A, as it is neither revoked by USCIS nor your L1 sponser. As long as you had a vaild work authorization with company A (for the period of the misrepresentation ) you were working legally for A. Therefore it is not a misrepresntation.
Click to expand...

Where did you hear this?
 
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