I-485 Tax question...bad situation....Plz help me

E

Explorer19

Registered Users (C)
Hi All

What are the chances of getting I-485 rejected based on
very very very LOW TAX returns and W-2s

I started my job in 1999 and tax returns for 3 yrs 1999, 2000, 2001 are fine (which i have included with I-140 and my I-140 got approved

Now I am applying for I-485

my tax returns for 2002 and 2003 are very very very LOW (becoz I was on bench for most of the time)
Now I have Job in 2003 ending and 2004 (expecting good amount for 2004 tax returns and possibly 2005 also)

My attorney wants 3 yrs tax returns but my employer says that it is not necessary to include any tax returns and he says we will deal with it when they send RFE and he says that INS automatically determines that if we are out of status, they will come back and say that I need to pay $1000 to reinstate and my I-485 will be approved. He sya that this is not section 245(i) and i know 245(k) does not have $1000 fees?

Do u folks have any idea of what he is talking abt? and how true is it?

Plz help me what should I do

btw mine was labor substituion with priority date 11 may 1998 which is before the 30 apr 2001 deadline for section 245(i)




Plz input ur valuable suggestions
Thank you all in advance
 
Your employer is correct - no need to submit W-2 while filing 485. 245(i) comes into picture if you are out of status. Have you been out of status - did not have a valid visa anytime?
 
Hi frantic

I was always in status but technically out of status becoz i was on bench and not being paid.

otherwise i always had continuous visa

I came on F1 visa studies 3 semesters and changed to H1B status. My H1B visa got rejected once in mexico in 2000 but I have been maintaining H1B status since then. My 6 yrs of H1B will be ending on 31 dec 2004

first H1 from OCT 98 to feb 2001
and received H1 extn from jan 2001 to dec 2004


is being on bench without pay considered as out of status? can i use 245(i) for this? how can i justify the very very very low incomes in 2002 and 2003?
 
If you were on bench it is OK as long as you are in status. Pending 485 is good enogh for being in status.
On H1 without pay is also OK - if company has published/uniform bench policy.
More important to have proper job at adjucation time.
HTH
 
Last edited by a moderator:
Originally posted by sb_tiger
On H1 without pay is also OK - if company has published/uniform bench policy.
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Maybe. If such a situation persists for a significant period of time, then USCIS may have an issue with it, especially if it was not mentioned in the H-1 petition. If the W-2s are abnormally low for several years, there may be a problem here.

245k may not cover you when you file - it would be a 245i case. Although the LC date is pre-2001, our original poster's priority date if it's an LC substitution case would be the date of the I-140 filing, which may or may not put him under 245i.

I wouldn't submit the tax returns (since there's no obligation to) and I certainly wouldn't claim relief under 245i unless USCIS issues a Notice of Intent to Deny, especially if the PD causes issues.
 
Hi The Real Canadian

The priority date in my I-140 approval notice says that it is
11 may 1998 and not the I-140 filing date which is 25 nov 2002.

So this means that even though mine was labor subs, I still have th eoriginal priority date of when th elabor was applied.

Alos 245(i) has grandfathering rule which gives the priority date to the person who is used as substitute

Is this correct?
 
Originally posted by Explorer19
The priority date in my I-140 approval notice says that it is
11 may 1998 and not the I-140 filing date which is 25 nov 2002.
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I wouldn't take the PD listed on the I-140 approval as gospel, since on mine it was blank. They may not have checked to see that it was an LC substitution case. Of course, my thoughts on the subject of Priority Dates and LC Substitution might be incorrect.

Alos 245(i) has grandfathering rule which gives the priority date to the person who is used as substitute. Is this correct?
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I don't think that 245i ever included an explicit LC substitution provision. It just referred to your priority date, and used the existing rules to determine it.

I guess the question you need to have answered, is "Does an LC substitution beneficiary gain the original priority date, or the is the priority date in such a circumstance the date of the I-140 filing, ie. the date when that alien first filed for a GC?" My gut still says that it's the date when YOU first filed for the GC, and your name isn't on the LC. Get an attorney's opinion, and ask him for the specific statutory or regulatory source so that you and we can research it for ourselves.

Lawyers can say anything they want. I want to know what the law and regulations say.
 
Hi TheRealCanadian

C'mon Man How can they not know that it is a substitution case, when they have the documentation showing that it is a substitution case and I also had an RFE that they wanted an original copy of labor.

Also I saw the 245(i) statutory somewhere explained in very detail. I am trying to find it. As soon as i know abt it I will publish the link here

Grandfathering is what they call.....you will get the original priority date when th eoriginal LC was filed. See an LC is not for a person it's for a company, so there is no question of the labor being for the person on whose name it was applied.

anyway i will keep u posted abt 245(i)
 
As per my knowledge
1. If your I-94 does not have any gap period then you are ok. You don't have to file under 245i.

2.If your i-94 has a gap period of 6 or more month then you have file under 245i and your lc should be filed before april 30 2001.

3. If your i-94 has a gap period of less then 6 month you can file under 245k.


Just my 2cents
 
Hi checkthisout

I never had a gap of any sort on I-94.
My only concern is very very very low tax returns for last 2 yrs and benching without pay

How do people overcome the benching period?
 
Originally posted by Explorer19
C'mon Man How can they not know that it is a substitution case, when they have the documentation showing that it is a substitution case and I also had an RFE that they wanted an original copy of labor.
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All I'm saying is that the priority date on the I-140 should not be treated as gospel. If there is a possibility of needing to claim relief under 245i and there is uncertainly regarding your actual priority date, you make assumptions at your own risk.

I'm not telling you anything with certainty one way or another. All I'm saying is that I've seen errors before on USCIS's part (lots of them) and if there's an error and your Priorty Date turns out to be the I-140 RD then your 245i option goes up in smoke.

Wouldn't you like to know for sure what ground you stand on before that happens? I sure would.

See an LC is not for a person it's for a company, so there is no question of the labor being for the person on whose name it was applied.
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I'm aware of how an LC and I-140 operate. I'm also aware that the priority date is linked to an individual's name appearing on a GC petition, and your name wasn't on the LC.

Look, if you're 110% convinced that your priority date is in 1998 and not 2002, I'll save my breath and energy and we can go merrily on our way. I'm just saying (as a lay person, but one who's done this stuff since 1997) that there is some doubt as to what your actual priority date is, and you may want to spend a little bit of time investigating now what the true situation is. If you choose not to, fine - but if your I-485 is rejected don't come running back here for help.
 
Originally posted by checkthisout
As per my knowledge
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Your knowledge only covers periods of illegal presene. There is still an "out of status" component you need to take aware of. If he was not working for his H-1 sponsor and not getting paid, he was out of status, valid I-94 or not.

If he was out of status for more than 180 days, no 245k for him.
 
I-94 should not matter at all. It is the status that is determined by H1. If you were not fired by employer and/or H1 revoked- you are in status. The fact that you did not get paid becomes an issue- if it is for a long period especially if not mentioned in H1 petition.
However if you have valid job on H1- you are in status. If not getting paid- you and much more importantly your employer has to explain- the reason for non-pay- company policy etc etc
HTH
 
Hi sb_tiger

My H1 was never revoked or i was never fired and i am with the same employer always and I was on bench from may 2002 to sep 2003 and now I am on a project since oct 2003.

My I-140 got approved last month. I am planning to apply for I-485 now.

This is my story

The fact that you did not get paid becomes an issue- if it is for a long period especially if not mentioned in H1 petition
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what is the "mentioned in H1 petition" you are talking about?
 
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