I-485 denial (potential fraud reason)

[RajThomas77]

When you say "potential employer", were you referring to company B, which filed original L-1 to H-1B COS petition? If yes, I have opted for employment with that company but did not want to take it up after the H-1B approval, as they did not keep their word regarding salary.

 

[raevsky]

You started with H-1 (company A)
Then changed status to L-1 (company B).
Then changed status to H-1 (company A)
Then made H-1 transfer (company C)
The problematic COS is marked red. It is the one where potential fraud was involved.
Had I-129 contained "out-of-status", you would not be able to complete that COS. Also, you would not be able to transfer to company C. And then apply for AOS.

So, by potential employer I mean company A. How did they find out info about your current immigration status (appropriate for that moment of time)?
Did they send you a written questionarie?
Please describe all the process regarding the red record. You communications with the company A and their lawyer. Everything about that.

I would also like to know if the lawyer for company B was different or the same.
And if the lawyer you used to get initial H-1 into company A was the same or different

 

[RajThomas77]

You started with H-1 (company A)
Then changed status to L-1 (company B).
Then changed status to H-1 (company A)
Then made H-1 transfer (company C)
The problematic COS is marked red. It is the one where potential fraud was involved.
Had I-129 contained "out-of-status", you would not be able to complete that COS. Also, you would not be able to transfer to company C. And then apply for AOS.

So, by potential employer I mean company A. How did they find out info about your current immigration status (appropriate for that moment of time)?
Did they send you a written questionarie?
Please describe all the process regarding the red record. You communications with the company A and their lawyer. Everything about that.

I would also like to know if the lawyer for company B was different or the same.
And if the lawyer you used to get initial H-1 into company A was the same or different

Originally, it is L-1 with company A
-- followed by H-1B with company B (COS from A's L-1)
-- followed by H-1B with company A (COS from A's L-1, filed as "new employment")
I shared the problem wth company A by talking to the Immigration Department of company A, who later consulted an Attorney and filed the petition (the one where you were referring to in red color)
-- after a couple of years, followed by H-1B with company C (COS from A's H-1B). I took this job up as company A was trying to send me back to India and company C not only offered a job, but also GC

 

[raevsky]

-- followed by H-1B with company A (COS from A's L-1, filed as "new employment")

Yes, I was referring to this COS.
So, you talked to the potential employer (company A) only? You did not fill out any paperwork regarding your immigration status in writing?
You did not contact their lawyer in writing or otherwise?

Please ask my other questions about the lawyer.

 

[RajThomas77]

Yes, I was referring to this COS.
So, you talked to the potential employer (company A) only? You did not fill out any paperwork regarding your immigration status in writing?
You did not contact their lawyer in writing or otherwise?

Please ask my other questions about the lawyer.

I just talked to the employer, may be sent couple of e-mails explaining the situation prior to having a verbal conversation. I did not fill out any paperwork in writing, not a single word. I did not sign anything; I just supplied photo copy of every possible document that the company asked (with lot of hardship in some cases, as company B wouldn't give I-797 approval notice).

The lawyer who filed initial blanket company A L-1 petition is different from the lawyer who filed the company B H-1B petition, who is different from the lawyer who filed the company A H-1B petition. To summarize, lawyers on all 3 occasions were different. The last case, where the law firm helped in reinstating status, is a reputed law firm.

 

[raevsky]

I did not fill out any paperwork in writing, not a single word

Then it will be difficult for you to prove that was not you who mentioned to them in a verbal conversation your status was L-1. Do not forget, the burden of proof is yours (that you did not commit any fraud).

 

[RajThomas77]

Then it will be difficult for you to prove that was not you who mentioned to them in a verbal conversation your status was L-1. Do not forget, the burden of proof is yours (that you did not commit any fraud).

Okay, assuming that I mentioned my status as being L-1 just for the sake of argument,
(a) Since I shared the problem with all facts with company A, they know that my status got changed to H-1B through company B.
(b) Company A's immigration department was the one who asked me to try hard in getting company B's I-797, so I did not hide any facts from company A
(c) Why would company A take any action in reinstating H-1B COS, if I was still on L-1;
(d) Why would company A, in consultation with the attorney state on all multiple documents other than I-129 that "Status changed to H-1B, but he did not work for the petitioner"?
(e) The attorney, filed every document from company A, plus I-797 from company B and even mentioned the EAC # from company B, etc

 

[raevsky]

Okay, assuming that I mentioned my status as being L-1 just for the sake of argument,

In that case the only thing you could do is to say you were just inaccurate and did not pay attention to the question. Or did not realize your status is actually different from L-1.

(a) Since I shared the problem with all facts with company A, they know that my status got changed to H-1B through company B.

That is possible. However, that lies outside of the main question - whether you committed fraud or not while saying you were in L-1 status.

(b) Company A's immigration department was the one who asked me to try hard in getting company B's I-797, so I did not hide any facts from company A

Except the main thing - you said to them you were in L-1 status

(c) Why would company A take any action in reinstating H-1B COS, if I was still on L-1;

Because H-1 and L-1 are different statuses with different rules. H-1 is beneficial to them in some kind, and L-1 is beneficial to them in another kind. This comment also lies outside of the main question.

(d) Why would company A, in consultation with the attorney state on all multiple documents other than I-129 that "Status changed to H-1B, but he did not work for the petitioner"?

That could be company A's mistake, or lawyer's mistake. You could have provided them with two pieces of information.
1. You were in L-1 status
2. Status changed to H-1B, but he did not work for the petitioner
They truthfully put both into the forms. The first one was a misrepresentation, and the second one was not. A good lawyer would have notices a contradiction. However, all the info that comes from you is your responsibility, not theirs

(e) The attorney, filed every document from company A, plus I-797 from company B and even mentioned the EAC # from company B, etc

A good lawyer would have noticed a contradiction. Maybe you could sue the lawyer for the amount they charged (if they charged you, not the company).

If you did not mention to them your status was L-1, you need to prove that.
If you did mention your status was L-1, you need to prove you really believed so or you did it just because of being inaccurate, not because you wanted to get into status while being out-of-status.

The suspicion is you did that because you were out-of-status and did not want to pay the airline to go to your home country and get a visa there. That is why you decided to say you had L-1 status, to save money on the trip and still get into status.

 

[RajThomas77]

Thanks for spending your precious time, in helping me through this nightmare.

Just to rule out the possibility of any communication gap, I would like to clarify that I started working in US on company A's L-1. It was the same company A, to which I shared the problem regarding COS to company B's H-1 (and not working a single day for company B). The company A, then said that it is a problem and they consulted the attorney to file a new H-1B.

I have not shared anything regarding my non-immigrant status with company A (i.e., whether I am on L-1 or H-1) and the company's representative concluded the problem using his knowledge (possibly also talking to the attorney). At that time, I am naive to immigration matters.

It was company A, to which I supplied I-797 from company B. They consulted the attorney and mentioned the problem accurately (except on I-129). Whether or not I mentioned anything verbally could have easily been refuted by company A, with facts that I presented to them.

Regarding avoiding travel, etc., truthfully, I did not even know what is the exact problem, magnitude, etc., during that time in 2003. I did not know anything except for the fact that I should reach out to my parent company A and apprise them of the situation, which I did instantly when I knew it was a problem. I have dutifully supplied all material facts/documented that they needed and they did the rest.

 

[raevsky]

More comments.
If you decide now to leave the US most likely you will never be admitted back.
If, instead, you decide to fight with USCIS decision first through MTR, then in BIA, and then in court (these options will be ruled out if you leave US) you might be able to prove that was not fraud. The AOS will still be denied (because you were out-of-status), but you will be able to get an immigrant visa.

 

[RajThomas77]

How much time it would approximately take for MTR to be reviewed by USCIS and that is denied, BIA to review the case.

I thought that court does not have jurisdiction on "fraud and/or willfull misrepresentation" cases, as per INA laws.

 

[raevsky]

About timing I do not know. Court has jurisdiction over everything, including fraud/misrepresentation.

 

[RajThomas77]

About timing I do not know. Court has jurisdiction over everything, including fraud/misrepresentation.

INA Section 212 (i) (2), which is an extension of INA 212 (C) (i), appears to indicate that no court has jurisdiction over CIS decisions regarding this matter.

Also, what do you think are chances of getting excused through MTR or BIA or Court (if allowed), approving my case. I have never lied regarding immigration matters to anyone, which is somewhat substantiated by the fact that even though the was erroneously mentioned as L-1, the attorney has indicated on multiple documents that "Status has changed, but he did not work for the H-1B petitioner".

Even on the G-325A, I have not mentioned that I worked for Company B, because I did not work for them. My mistake could have been including ALL previous I-797s, as directed by the GC sponsorin company. CIS might have compared I-797s against G-325A and found discrepancy, followed by what has happened.

I have also exited the country few times in 2006 and reentered, so should have been covered under 245(K).

 

[raevsky]

NA Section 212 (i) (2), which is an extension of INA 212 (C) (i), appears to indicate that no court has jurisdiction over CIS decisions regarding this matter.

Yes, it looks like you are right.

Also, what do you think are chances of getting excused through MTR or BIA or Court (if allowed), approving my case. I have never lied regarding immigration matters to anyone, which is somewhat substantiated by the fact that even though the was erroneously mentioned as L-1, the attorney has indicated on multiple documents that "Status has changed, but he did not work for the H-1B petitioner".

I do not know

Even on the G-325A, I have not mentioned that I worked for Company B, because I did not work for them. My mistake could have been including ALL previous I-797s, as directed by the GC sponsorin company. CIS might have compared I-797s against G-325A and found discrepancy, followed by what has happened.

It could be a willfull fraud, or could be an innocent mistake. You have to prove it was not fraud.

I have also exited the country few times in 2006 and reentered, so should have been covered under 245(K)

245(k) covers illegal employment (up to 180 days). It does not cover being out-of-status.

 

[JohnThomas82]

RajThomas --

Assuming that the denial was really because of L-1 to H-1 COS (the actual denial reason could be something else; I have noticed people hiding facts for obvious reasons), you should present all facts to a reputed attorney and file an MTR.

Whatever you have seen others respond saying that "you" actually fradulently submitted the I-129 or gave information to your company in order to fradulently acquire L-1 to H-1B COS does not appear to make total sense. The I-129 is something that is signed by the Company representative and optionally by an Attorney. It is an employer petition and not an employee petition.

In your case, it could very well be the case that USCIS has forgiven the mistake (they have the authority to excuse violations at their own discretion) considering your employment background, i.e., a job with a Fortune 500 company. If they wished to not forgive your mistake, at least, they would have approved the H-1B petition in Nov 2003, but USCIS chose to additionally grant COS. This could not have happened just because of a minor incorrect information presented in the I-129. USCIS has computerized systems, documents, etc., available to them while adjudicating a case and they keep the company's background in perspective while approving/denying petitions.

Above all, your company (does appear to be a good one) has stated on multiple documents that "status changed from L-1 to H-1B, but did not work for the petitioner". So, there does not appear to be anything materially wrongdoing on part of the company either.

Any comments from experienced people (Ginnu or Realcanadian or Manwithnoname, etc)?

 

[RajThomas77]

Thanks for your kind words. I did not hide anything, just to be clear. If the reason for denial was because of something else, I would have consulted an attorney directly, instead of posting in this forum.

Nevertheless, while I continue to brace myself up for MTR and related activites, I am wondering if there was anyone who had the same kind of a problem. With close to 2000 views, it is hard to believe that nobody filed for a similar COS from a H-1B of a company to the parent company (which originally sponsored L-1). Anyone with similar situation please, at least, that would give me some moral support?