I 485 / Family F4 / Q17 & Q24A

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jack10901090

Registered Users (C)
Wanted your opinion on the I 485 as my priority date should be due in the next two years in the F4 category.

Q17
⦁ Have you ever violated the terms and conditions of your non immigrant status?
Between May 2004 (OPT ended) I was waiting for my J1 approval (received approval on Aug 04 2004 but application was approved starting May 1st 2004) and immigrated to Canada in September 2004 so did not work during that period as H1B application was returned in 2003 due to high volume. Please comment on violating terms on F, M, J visas prior to 2018.

⦁Q24A
Have you ever been on a J1 non immigrant visitor who was subject to a 2 year residency this for my I 485 application?
In my case on the J1 approval in Aug 2004 the first check box that states not subject to residency has been initialed and checked while the second option that says subject to residency has been circled and checked. How do I interpret this for my I 485 application?.

Never used the J1 as I moved to Canada


2000 = F1 issued, Primary passport
2003 = OPT issued, Primary passport
2003 = H1 petition returned due to high volume and employer applied for J1 status, Primary passport
May 2004 =OPT ended, Stopped working, Primary passport
Aug 2004 = J1 approved in the letter format.
Sep 2004 = Immigrated to Canada as a permanent resident.
2005 = B1/B2 = 10 year approved in Toronto, Primary passport
2006 = Applied for F4 Immigrant visa, Got I 130 # approved, Primary passport
2007 = H1B approved and stamped, never used, Primary passport
2008 = Acquired Canadian citizenship.
2011 = TN permit (#1),Canadian passport.(Used for only 1 year)
2017 =TN permit (#2),Canadian passport.(Currently in use)(Crossed every weekend for 2 years straight)

Thanks and appreciate all the help.
 
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jack10901090 said:
Wanted your opinion on the I 485 as my priority date should be due in the next two years in the F4 category.

Q17
⦁ Have you ever violated the terms and conditions of your non immigrant status?
Between May 2004 (OPT ended) I was waiting for my J1 approval (received approval on Aug 04 2004 but application was approved starting May 1st 2004) and immigrated to Canada in September 2004 so did not work during that period as H1B application was returned in 2003 due to high volume. Please comment on violating terms on F, M, J visas prior to 2018.
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I would say you didn't violate status while you had a pending Change of Status. Since your Change of Status was approved, you didn't violate status during that time.

I'm not sure if you would have been considered to have violated your J1 status because you didn't work after it was approved and before you left the US, but probably not since it was such a brief time and you basically left very soon after you found out it was approved.

I will also note that if the answer to this question is Yes, i.e. you have ever been out of status in the current or any past stay, you would not be eligible for AOS in your category. So it had better be No or else you shouldn't be filing I-485 in the first place.

There have been no changes to what is considered out of status or a violations of terms in 2018. There is a change to what counts as "unlawful presence", but "unlawful presence" doesn't matter for AOS. It is being out of status that matters for AOS.

jack10901090 said:
⦁Q24A
Have you ever been on a J1 non immigrant visitor who was subject to a 2 year residency this for my I 485 application?
In my case on the J1 approval in Aug 2004 the first check box that states not subject to residency has been initialed and checked while the second option that says subject to residency has been circled and checked. How do I interpret this for my I 485 application?.

Never used the J1 as I moved to Canada
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Your Change of Status was approved (you filed I-539 and it was approved, right?) while you were still in the US, so you were in J1 status, even if you never worked on it; so whether you were subject to the requirement is relevant. It seems there was confusion by whoever filled out your DS-2019 about whether you were subject to the 2-year home residency requirement. You might want to get an advisory opinion from the State Department. But if it's still unclear by the time you fill out I-485, you should maybe write in "not sure" on the form and let USCIS figure it out.
 
Thanks and I have submitted an FOIA request to see what was on file for 2004 with regards to exit and entry so we can be clear on how to approach the violation subject.

Would requesting the 2 year foreign residency decision for the J1 through the advisory process red flag anything.(Is it a cut & dry response from USCIS Y/N)

Effective August 9, 2018, USCIS made fundamental changes to its policy on how an immigration status violation might lead to a finding that an F, M, or J nonimmigrant should be subject to the 3- or 10-year reentry bar provisions of INA 212(a)(9)(B). Under the new policy, USCIS will start counting days of unlawful presence the day after an F, M, or J status violation occurs, unless the student is covered by an exception to the unlawful presence counting rules. Prior policy did not count unlawful presence until a USCIS official or immigration judge made a formal finding of a status violation.(Did we have to be notified of a status violation prior to Aug 09 2018)

Would there have been any connection between the J1 violation & subsequent visa approvals in 2006 (B1),2007(H1),2011 (TN) & 2017 (TN)

Appreciate all the help and will revert.
 
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jack10901090 said:
Thanks and I have submitted an FOIA request to see what was on file for 2004 with regards to exit and entry so we can be clear on how to approach the violation subject.

Would requesting the 2 year foreign residency decision for the J1 through the advisory process red flag anything.(Is it a cut & dry response from USCIS Y/N)

Effective August 9, 2018, USCIS made fundamental changes to its policy on how an immigration status violation might lead to a finding that an F, M, or J nonimmigrant should be subject to the 3- or 10-year reentry bar provisions of INA 212(a)(9)(B). Under the new policy, USCIS will start counting days of unlawful presence the day after an F, M, or J status violation occurs, unless the student is covered by an exception to the unlawful presence counting rules. Prior policy did not count unlawful presence until a USCIS official or immigration judge made a formal finding of a status violation.(Did we have to be notified of a status violation prior to Aug 09 2018)

Would there have been any connection between the J1 violation & subsequent visa approvals in 2006 (B1),2007(H1),2011 (TN) & 2017 (TN)

Appreciate all the help and will revert.
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Again, "unlawful presence" is not relevant for AOS. Changes to the policy for "unlawful presence" are not relevant for your AOS. However, if you have ever violated your status, even if you never accrued "unlawful presence", would bar you from AOS in your category. What is considered in status for AOS purposes hasn't changed recently.

I doubt that the fact you didn't participate in a J-1 activity in the brief period of time between when you received notice of the COS approval and when you left the US would be counted as a violation of J-1 status, but I am not sure how exactly it would be considered.
 
Thanks for the replies.

Would requesting the 2 year foreign residency decision for the J1 through the advisory process red flag anything.(Is it a cut & dry response from USCIS Y/N)

Would there have been any connection between the J1 issue & subsequent visa approvals in 2006 (B1),2007(H1),2011 (TN) & 2017 (TN)
 
Thanks for the information.

Could you please comment on the overstay issue as my file will be processed through the consular processing route and not AOS though DS260 also has the same question. Do subsequent visas (B1 and TN - 3 issued ) wipe out the previous overstay for the DS 260 application for green card?
 
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jack10901090 said:
Would there have been any connection between the J1 issue & subsequent visa approvals in 2006 (B1),2007(H1),2011 (TN) & 2017 (TN)
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Yes, you should not be able to get H1b if you have not fulfilled the 2-year home residency requirement.

jack10901090 said:
Thanks for the information.

Could you please comment on the overstay issue as my file will be processed through the consular processing route and not AOS/485. I made an error by using AOS & 485 verbage.
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Being out of status does not matter for Consular Processing. Only the "unlawful presence" ban would matter, and you do not accrue "unlawful presence" while a Change of Status application was pending or while you had an unexpired I-94. You never accrued any unlawful presence, and never triggered a ban.
 
Thanks for being so patient with me and answering my question and wanted to clarify "being out of status does not matter for consular processing" based on DS 260 verbage as below.(received an H1 in 2007)

The question on the DS 260 form asks
<Have you ever been unlawfully present <never accrued- did not enroll in J1 program between Aug1st and Sep 21-2004>,overstayed the amount of time granted by an immigration official or violated the terms of a US visa?<PLS comment>

Thanks
 
When filing I 485 (AOS) the applicant can technically never violate the status (F,M & J class visas) unless determined by a DHS officer in the course of a benefits application, or by an immigration judge.
 
jack10901090 said:
When filing I 485 (AOS) the applicant can technically never violate the status (F,M & J class visas) unless determined by a DHS officer in the course of a benefits application, or by an immigration judge.
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You are talking about "unlawful presence", not out of status. People with "D/S" on their I-94 do not automatically start accruing "unlawful presence" on any date, but that does not mean they are not out of status.
 
Thanks NewAcct. (Thank you for vetting the above information). From the below link even violation (first step) is determined by officer/judge in this visa category. Then they determine if unlawful condition has occurred.(2nd step)

http://www.edelstarlaw.com/en/immigration/visas/fmj-student-visas
"Overstay. A non immigrant who has “D/S” (duration of status) is not considered overstay for purpose of the Section 222(g) unless the immigration services officer or immigration judge has made a determination that a status violation has occurred. Thus, where an immigration officer or immigration judge has made the determination, the D/S visa holder can no longer simply leave the country and re-enter with his I-20. He must return home and obtain new visa. However, if eligible an immigrant may apply for reinstatement."
 
Yes, INA 222(g) basically uses the same thing as unlawful presence, even though they don't call it that. Again, not triggering INA 222(g) does not mean you are in status.
 
How can the I 485 application be vetted by the officer for any length of stay deviation when INA 222(g) has never been formally triggered?

e.g.If a student say did not enroll/finish the program and unless the program administrator informed USCIS, then the federal official has to trigger the violation first. Until that determination the applicant has never violated the visa. The onus is on the federal government to determine the violation.If this applicant applies for AOS and the program manager has not notified the USCIS there was no violation.In the worst case he could have gone MIA for years unless the adjudicating officer verifies the exit/entry record and still there was no formal determination of any violation.
 
jack10901090 said:
How can the I 485 application be vetted by the officer for any length of stay deviation when INA 222(g) has never been formally triggered?

e.g.If a student say did not enroll/finish the program and unless the program administrator informed USCIS, then the federal official has to trigger the violation first. Until that determination the applicant has never violated the visa. The onus is on the federal government to determine the violation.If this applicant applies for AOS and the program manager has not notified the USCIS there was no violation.In the worst case he could have gone MIA for years unless the adjudicating officer verifies the exit/entry record and still there was no formal determination of any violation.
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No. The status is violated when the person is no longer complying with the requirements of the status. For example, an F1 student who stays for more than 60 days after the end of their program without transfering to another program or doing OPT, etc., is out of status. It doesn't matter if anyone made any determination that the person was out of status at the time the violation occurred; whether a status violation occurred is a matter of law based on the laws, regulations, and the facts of the situation, and can be determined retroactively when the person applies for a benefit where status violations is relevant. The person in this example does not accrue "unlawful presence" and does not trigger invalidation of their visa under INA 222(g) even if they continue to stay for years after the end of their program, but that does not mean they are in status. The person would be ineligible for anything that requires them to be in status, including Change of Status, Extension of Status, or Adjustment of Status other than in the Immediate Relative category. See Adjudicator's Field Manual chapter 40.9.2(a)(2) for the distinction between unlawful status and unlawful presence.
 
jack10901090 said:
How can the I 485 application be vetted by the officer for any length of stay deviation when INA 222(g) has never been formally triggered?

e.g.If a student say did not enroll/finish the program and unless the program administrator informed USCIS, then the federal official has to trigger the violation first. Until that determination the applicant has never violated the visa. The onus is on the federal government to determine the violation.If this applicant applies for AOS and the program manager has not notified the USCIS there was no violation.In the worst case he could have gone MIA for years unless the adjudicating officer verifies the exit/entry record and still there was no formal determination of any violation.
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I concur with newacct’s assessment and in fact have seen reports of AOS denial for similar reasons.
You might also want to look at the bars to adjustment section of the manual which not only describes the kinds of situations that bar adjustment but also specifically mentions how officers can determine if bars apply: “An officer may request and review any and all of the applicant’s Arrival/Departure Records (Forms I-94), approval notices (Forms I-797), USCIS records, current and expired passports, and other evidence or testimony that pertains to maintenance of lawful status and compliance with the terms and conditions of nonimmigrant status.“
https://www.uscis.gov/policy-manual/volume-7-part-b-chapter-4
 
Mentors, Thanks for all the posts and truly appreciate going by the book approach. (Even with 4 subsequent work visas after my 53 day J1 violation I am still in the red zone after my J1 approval as my employer informed me that the J1 position had been filled as they could not wait from May 1 '04 - Aug '04- approval timeline)

I will be getting attorney reviews and will update with their response. Even if we have a 1 day technical violation I believe we are better off with our consular processing approach by the book.
 
Spoke to lawyer # 1.
After I told her about this thread she told me I would need to assess my B1/B2 application (2006) and H1(2007)(DS 260 -misrepresentation) first as I did not include this violation (J1 overstay) as a part of the application. She is telling me if we had included this violation on our visa applications she has no issues filing for AOS with with the J1 overstay. Since my PD is two years away she opined that we wait until next year as discretionary policies may change with regards to waivers.

Thanks for further guidance.
 
Update :)0)) based on my scenario - Same feedback / thought process from US news ranked national law firms (3).

Violation question is more specific (90 percent weightage) to the entry (last) when the 485 is filed.
Violation (prior entries) under 180 days on the 485 ~ No violation legally (under the rug).
D/S (visas) violation must be determined by judge / USCIS violation during that period of deviation. (Adjudicating officer cannot determine technical violation after 15 years when beneficiary has had multiple visas issued especially when deviation was one-time incident less than 180 days)

Consensus is do not declare technical violation as it has never happened.

Worst case if the adjudicating officer brings it up, we will explain the same thing as above (1 percent chance as they do not believe technical violation ever happened).

Thanks for all the help.
 
newacct & SusieQQQ,
Thanks for the replies earlier. Would there be any issues with consular processing? I am sure I will be stating the above overstay facts on my DS 260.

Regards,
 
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