I-485 or Consular processing

A

azamk

New Member
Hello all,
I would appreciate any bit of advise that people would have to offer on this forum. I got my PERM approved last month under EB2 and my priority date is current. I am now getting ready to file for my I140 and I485 concurrently.
To give a bit of history I have worked the same company since 2004. In 2004 I worked for them under my EAD. However due to the shortage of H1B numbers I could not get apply for it. I continued my employment with them and also enrolled back in school to maintain my status until we got an H1B approved starting October 2005. This means that I was in violation of my student status from Jan till October (more than 180 days). I have however maintained lawful status through this time. I have also exited the US and entered back. My most recent lawful entry was on Apr20 2010.

Here is a timeline overview:
Jan 2004 - Jan 2005 Worked under EAD
Jan 2005 - Oct2005 Enrolled in School to maintain status under F1 but continued employement
Oct2005 - Current Working under H1 status. Also entered and exited the US lawfully several times.

The question I have is this:

Am I eligible to use the I-485 route under the 245k rule?

My lawyer is recommending consular processing but I am hesitant to use that route as I would have to leave the US and their is no way to appeal their decision if they decline. If someone can please provide me some insight I would really appreciate it.
Thank you all in advance.
 
Definitely file the I-485. What counts is that you've been in legal status since your last legal admission, and there is no 3-year or 10-year bar that was triggered when you exited.
 
My lawyer is recommending Consular processing because he is under the impression that the violation still counts and that immigration can take action on it if found. Is it possible for you to cite the source from where you suggest that it is only the violations since my last date of entry that count?
Thank you so much! I request other users on this site as well to please share their thoughts and experiences on this.
Thank you!
 
azamk said:
My lawyer is recommending Consular processing because he is under the impression that the violation still counts and that immigration can take action on it if found.
---bad lawyer
Is it possible for you to cite the source from where you suggest that it is only the violations since my last date of entry that count?
--------------- No need to teach him/her immigration law. Go to other lawyer. I-485 is your Petition not employer petition
Thank you so much! I request other users on this site as well to please share their thoughts and experiences on this.
Thank you!
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If you have Latest I-94 After you got H1 visa and when out and again came back to US then your Lawyer is wrong. You can file directly I-485. FYI with Consular processing No Appeal, no AC21, no EAD or AP. If lawyer is not ready file your I-485 file directly and also file for EAD and AP
 
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azamk said:
My lawyer is recommending Consular processing because he is under the impression that the violation still counts and that immigration can take action on it if found.
Click to expand...
Is this your lawyer or your employer's lawyer?

If it's your employer's lawyer, be aware that he is acting primarily in the employer's interest, not yours. From the company's perspective, they would prefer that you don't file for AOS, because without AOS you couldn't use an EAD and AC21 to leave them easily.
 
Jackolantern said:
Is this your lawyer or your employer's lawyer?

If it's your employer's lawyer, be aware that he is acting primarily in the employer's interest, not yours. From the company's perspective, they would prefer that you don't file for AOS, because without AOS you couldn't use an EAD and AC21 to leave them easily.
Click to expand...

NO. This is an immigration attorney that I have hired to work with me and the company. I can't personally say if he is a shitty attorney but his company us reputed to be one of the best at dealing with immigration matters. That is why I am surprised by his response which seems to be in direct conflict with most opinions I have read online.
 
:confused:
azamk said:
NO. This is an immigration attorney that I have hired to work with me and the company. I can't personally say if he is a shitty attorney but his company us reputed to be one of the best at dealing with immigration matters. That is why I am surprised by his response which seems to be in direct conflict with most opinions I have read online.
Click to expand...
I had a similar experience where the attorney insisted that past violations never erase. And that no matter if I exit and reenter on a valid visa, I would still be ineligible for AOS. He also called an immigration officer at a USCIS office to confirm the same.
However one look at the July 2008 Neufeld's memo (google it), and he changed his mind. So your's might be ignorant too.

However, since you worked unauthorized, your company might be found liable to some fine as they continued employment despite not having proper authorization. But this is a risk you should take. Consult the Murthy law firm as they are highly experienced.
 
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ommoll said:
:confused:
I had a similar experience where the attorney insisted that past violations never erase. And that no matter if I exit and reenter on a valid visa, I would still be ineligible for AOS. He also called an immigration officer at a USCIS office to confirm the same.
However one look at the July 2008 Neufeld's memo (google it), and he changed his mind. So your's might be ignorant too.

However, since you worked unauthorized, your company might be found liable to some fine as they continued employment despite not having proper authorization. But this is a risk you should take. Consult the Murthy law firm as they are highly experienced.
Click to expand...

Hi Ommol,
Thank you for that advice. I have emailed my lawyer the link for the memo. I'll wait to see what he says about that. My only concern is that the memo covers all conditions for unauthorized employment after the last date of entry. It does not specifically say that unauthorized employment prior to last entry is ignored but just says those days are not to be counted. Hence my concern is that an IO could still declare unauthorized employment and reject the case. I thank you for your time and cosideration either ways. I hope this helps my case! Thank you!
 
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