I485 RFE will be most likely denied

[aschmidt]

My original H1b was approved and valid from 1/13/2004 to 1/1/2007 for a consulting company. On 11/23/2004 I came to US and started to work for this company. On 09/19/2006 my consulting company filed a H1b extension, which was pending for very long period. On 11/1/2005 my company filed an LC, following by I140, which were approved and on 10/9/2007 they filed I485 under EB3. On 9/20/2007 my company replied to the H1b RFE and case is showing as pending as of today, 08/26/2009. On 10/20/2008 i switched company using AC21 and EAD and no longer with original consulting company, but rather with permanent employer. On 8/20/2009, NSC issued an RFE regarding I485 with the following information:

The Form I-129, Extension of Stay, filed on my behalf on 9/19/2006 was denied on 3/2/2009. Therefore, the denial of your I-129 meant that the beginning of your being out of status reverted back to the expiration of your previously approved H-1B status on 1/1/2007.

Your form I-485 was filed on 10/9/2007. It appears that you were out of status at filing of your Form I-485 and not eligible for adjustment of status.

1. Submit additional doc evidence of all nonimmigrant status granted to you since your last lawful admission to the US on 3/25/2006.

2. Updated G-325A.

3. List of employment history since your last lawful admission on 1/15/00 - [date is incorrect, my first admission to US was on 10/20/2004).

4. Statement from new permanent employer, which specifies the job title, primary duties, wage.

5. Explain birth certificate/petition discrepancy in spelling of last name (actually, there is no discrepancy, all forms were submitted under same name).

So, my questions:

1. What the best strategy to deal with old employer's lawyer?
2. Should I hire new lawyer, would it help?
3. USCIS clearly indicated that I was out-of status > 180 days, any suggestions on how to avoid bar?
4. If first item clearly indicates that upon RFE, they will deny I485, anything could be done with new employer?

 

[Jackolantern]

I think your only hope is to appeal the denial of the H1B. Unfortunately, you may need the old company's involvement for that.

You need to consult a lawyer ASAP.

 

[Jackolantern]

Because your extension was filed before the original H1B expired, you may actually be eligible for adjustment of status or at least able to escape the 3-year and 10-year bars because it seems they would start counting the unlawful presence from the recent denial date rather retroactive to the original expiration date, assuming your H1B extension filing was "nonfrivolous": http://www.immigrationlinks.com/news/news201.htm.

 

[aschmidt]

I think your only hope is to appeal the denial of the H1B. Unfortunately, you may need the old company's involvement for that.

You need to consult a lawyer ASAP.

What is the allowed period to file MTR?

 

[aschmidt]

Because your extension was filed before the original H1B expired, you may actually be eligible for adjustment of status or at least able to escape the 3-year and 10-year bars because it seems they would start counting the unlawful presence from the recent denial date rather retroactive to the original expiration date, assuming your H1B extension filing was "nonfrivolous":.

You're not correct about unlawful presense, From RFE:

Therefore, the denial of your Form I-129, Extension of Stay, meant that the beginning of you being out of status reverted back to the expiration of your previously approved H-1B status on 1/1/07.

Your Form I-485 was filed on 10/9/07. It appears that you were out of status at filing of your Form I-485 and not eligible for adjustment of status. However, if you still believe that you are eligible to adjust, please comply with the following:

 

[Jackolantern]

My point is that sometimes these RFE's and denials are wrong. USCIS knows that the officers make mistakes, so they have an MTR process to correct those mistakes.

 

[TheRealCanadian]

USCIS knows that the officers make mistakes, so they have an MTR process to correct those mistakes.

What mistake was made? No illegal presence accrued, but valid non-immigrant status appears to have terminated at the expiration of the original H-1 petition. If more than 180 days elapsed until the I-485 was filed, then the denial is correct.

Agreed that appealing the original H-1 denial is the best shot. Why was it denied?

 

[Jackolantern]

What mistake was made?

I didn't necessarily say there was a mistake (but there is a possible mistake, which I will point out below). I was pointing out that RFE's and denials are often mistaken, so when there is a USCIS memo or Attorney General ruling that appears to contradict the RFE or denial, the wording in the RFE or denial should be viewed with a grain of salt, not held up as gospel.

No illegal presence accrued, but valid non-immigrant status appears to have terminated at the expiration of the original H-1 petition. If more than 180 days elapsed until the I-485 was filed, then the denial is correct.

Did you read the memo I linked to? It says the time spent when a timely filed nonfrivolous extension of status application is pending is considered a period of authorized stay by the Attorney General, but the RFE is calling that entire time "out of status". Sure, the valid nonimmigrant status was no longer there, but a period of authorized stay isn't exactly "out of status".

 

[TheRealCanadian]

Did you read the memo I linked to? It says the time spent when a timely filed nonfrivolous extension of status application is pending is considered a period of authorized stay by the Attorney General, but the RFE is calling that entire time "out of status". Sure, the valid nonimmigrant status was no longer there, but a period of authorized stay isn't exactly "out of status".

That's true, but the requirements for filing an I-485 require that one be in a valid non-immigrant status at the time of filing, or within 180 days if claiming 245k relief. They are more specific than "legally present".

You see this requirement come to bite people if they re-enter the US using AP or let their original non-immigrant status expire. If their I-485 is denied they cannot file a new one, because despite having been in an authorized stay the entire time, they have not been in a valid non-immigrant status which is required to file the second I-485.

USCIS appears to be on solid ground here.

 

[aschmidt]

What mistake was made? No illegal presence accrued, but valid non-immigrant status appears to have terminated at the expiration of the original H-1 petition. If more than 180 days elapsed until the I-485 was filed, then the denial is correct.

Agreed that appealing the original H-1 denial is the best shot. Why was it denied?

Will know by tomorrow if old company has this info, I already in contact with lawyer. It would be most likely either company name change or because I left the company while extension was pending (my mistake). Problem is that case is still in pending on USCIS and I didn't know that it was denied so to file MTR in timely manner.

 

[Jackolantern]

That's true, but the requirements for filing an I-485 require that one be in a valid non-immigrant status at the time of filing, or within 180 days if claiming 245k relief.

That's not exactly true either, as somebody with a pending AOS whose nonimmigrant status has expired is still eligible to file another I-485 for another immigrant petition.

 

[Jackolantern]

Will know by tomorrow if old company has this info, I already in contact with lawyer. It would be most likely either company name change or because I left the company while extension was pending (my mistake).

If it was because the company told them you left, USCIS should not have denied it if you were otherwise eligible. They should have approved it with a validity starting from when your first one expired, ending with the day you left the company.

You need to get a lawyer and work on having that H1B reinstated nunc pro tunc, or have the lawyer find something more definitive that indicates you were eligible for adjustment of status when you filed for it despite the long-pending H1B and its denial.

 

[Jackolantern]

On 11/1/2005 my company filed an LC, following by I140, which were approved and on 10/9/2007 they filed I485 under EB3.

Given that you are in EB3, how was an I-485 filed for you in October 2007, when your 2005 PD was not current?

 

[aschmidt]

If it was because the company told them you left, USCIS should not have denied it if you were otherwise eligible. They should have approved it with a validity starting from when your first one expired, ending with the day you left the company.

You need to get a lawyer and work on having that H1B reinstated nunc pro tunc, or have the lawyer find something more definitive that indicates you were eligible for adjustment of status when you filed for it despite the long-pending H1B and its denial.

Company's paralegal informed me that:

"Regarding your questions about the 03/02/2009 denial letter from USCIS, it appears that the reason for denial were predominantly related to questions about our model of business, that is, our providing consultant services to other companies. The denial was not appealed as you had already separated from our company."

Regarding how it happened that my company filed on my behalf the 485 petition, I cannot say definitely why it was accepted, but the intention was that since USCIS was already processing the H1b extension for more than a year, filing a 485, which was current earlier, would allow me to obtain EAD and continue working for the consulting company.

 

[Jackolantern]

Are you sure the I-485 was really filed in October 2007? Or was it that it was filed in July 2007 (when everybody in EB3 was made current as a part of the visa bulletin fiasco), but then the receipt date shows October 2007 because USCIS took a long time to produce the receipt due to the high volume of applications that summer? (they were supposed to backdate the receipt date to when it was actually received, but maybe they didn't do that in your case)

The date of filing the I-485 is a very important consideration, and you need to find out exactly what happened and when it was filed, and whether you are really in EB3 or EB2, because if your priority date was not current when it was filed, your I-485 is guaranteed to be denied regardless of the H1B issue. EB3 was not current in October 2007 for a priority date of 11/1/2005. Maybe it was your I-140 that was filed in 2005, not your labor certification?

 

[aschmidt]

Are you sure the I-485 was really filed in October 2007? Or was it that it was filed in July 2007 (when everybody in EB3 was made current as a part of the visa bulletin fiasco), but then the receipt date shows October 2007 because USCIS took a long time to produce the receipt due to the high volume of applications that summer? (they were supposed to backdate the receipt date to when it was actually received, but maybe they didn't do that in your case)

The date of filing the I-485 is a very important consideration, and you need to find out exactly what happened and when it was filed, and whether you are really in EB3 or EB2, because if your priority date was not current when it was filed, your I-485 is guaranteed to be denied regardless of the H1B issue. EB3 was not current in October 2007 for a priority date of 11/1/2005. Maybe it was your I-140 that was filed in 2005, not your labor certification?

I believe the dates are correct. Can you show links to laws/memos/AFM where it says that I485 will be denied if it was filed when PD is not current according to VB? According to AFM, once I140 is approved, the PD is secured. After that, there is an instruction that says that during AOS procedure one should establish if the I485 is can be approved within reasonable time, that is petitioner will be able to maintain the status when then opportunity to adjust can occur.

 

[aschmidt]

If it was because the company told them you left, USCIS should not have denied it if you were otherwise eligible. They should have approved it with a validity starting from when your first one expired, ending with the day you left the company.

You need to get a lawyer and work on having that H1B reinstated nunc pro tunc, or have the lawyer find something more definitive that indicates you were eligible for adjustment of status when you filed for it despite the long-pending H1B and its denial.

The denial was because of the company, therefore USCIS took 2.5 years to deny.

 

[aschmidt]

Because your extension was filed before the original H1B expired, you may actually be eligible for adjustment of status or at least able to escape the 3-year and 10-year bars because it seems they would start counting the unlawful presence from the recent denial date rather retroactive to the original expiration date, assuming your H1B extension filing was "nonfrivolous":

From your memo link:

"If an alien has timely filed a nonfrivolous application for E/S or C/S, the first 120 days of unlawful presence are not counted towards the 3-year bar under section 212(a)(9)(B)(i) of the Act. Section 212(a)(9)(B)(iv) of the Act further states that the alien must have been lawfully admitted or paroled into the United States, and must not have been employed without authorization before the E/S or C/S application was filed or while it was pending."

...

"Therefore, in order to alleviate problems aliens may encounter concerning unlawful presence through no fault of their own, the Service has determined that nonimmigrants who were admitted until a specific date and who apply for C/S or E/S and whose applications have been pending beyond the 120-day tolling period should be considered to be in a period of stay authorized by the Attorney General, if certain requirements are met. Because these requirements are the same as those for tolling under section 212(a)(9)(B)(iv) of the Act, the Service has further determined that the period of stay authorized by the Attorney General covers the E/S or C/S application for the entire period that it is pending."

 

[immpro]

From your memo link:

"If an alien has timely filed a nonfrivolous application for E/S or C/S, the first 120 days of unlawful presence are not counted towards the 3-year bar under section 212(a)(9)(B)(i) of the Act. Section 212(a)(9)(B)(iv) of the Act further states that the alien must have been lawfully admitted or paroled into the United States, and must not have been employed without authorization before the E/S or C/S application was filed or while it was pending."

...

"Therefore, in order to alleviate problems aliens may encounter concerning unlawful presence through no fault of their own, the Service has determined that nonimmigrants who were admitted until a specific date and who apply for C/S or E/S and whose applications have been pending beyond the 120-day tolling period should be considered to be in a period of stay authorized by the Attorney General, if certain requirements are met. Because these requirements are the same as those for tolling under section 212(a)(9)(B)(iv) of the Act, the Service has further determined that the period of stay authorized by the Attorney General covers the E/S or C/S application for the entire period that it is pending."

I agree. Also, there is a seperate section regarding this issue in the memo. It is page 37, clause (D) (iv). I will suggest you to include this memo and also AFM in response to the RFE. I shall also advise you to highlight the applicable section in the memo and the AFM. USCIS is wrong in its interpretation of statute and regulations pertaining to Unlawful presence.

All the Best!!

 

[aschmidt]

Are you sure the I-485 was really filed in October 2007? Or was it that it was filed in July 2007 (when everybody in EB3 was made current as a part of the visa bulletin fiasco), but then the receipt date shows October 2007 because USCIS took a long time to produce the receipt due to the high volume of applications that summer? (they were supposed to backdate the receipt date to when it was actually received, but maybe they didn't do that in your case)

The date of filing the I-485 is a very important consideration, and you need to find out exactly what happened and when it was filed, and whether you are really in EB3 or EB2, because if your priority date was not current when it was filed, your I-485 is guaranteed to be denied regardless of the H1B issue. EB3 was not current in October 2007 for a priority date of 11/1/2005. Maybe it was your I-140 that was filed in 2005, not your labor certification?

8 C.F.R 245.2 states as amended by 67 FR 49561:

§ Sec. 245.2 Application.

(a) General --

(1) Jurisdiction . USCIS has jurisdiction to adjudicate an application for adjustment of status filed by any alien, unless the immigration judge has jurisdiction to adjudicate the application under 8 CFR 1245.2(a)(1). (Paragraph (a) (1) revised 5/12/06; 71 FR 27585 ) (Amended 7/1/94; 59 FR 33903 ) (Paragraph (a)(1) revised effective 4/1/97; 62 FR 10312 )

(2) Proper filing of application --

(i) Under section 245 . (A) An immigrant visa must be immediately available in order for an alien to properly file an adjustment application under section 245 of the Act See § 245.1(g)(1) to determine whether an immigrant visa is immediately available. (Paragraph (a)(2)(i) revised 7/31/02; 67 FR 49561 )

67 FR 49561 reads as follows:

"If a Visa Number Was Not Immediately Available at the Time a Form I-140 Visa Petition Was Filed, and Then a Visa Number Becomes Available, Can the Alien File Form I-485?

Yes, upon issuance of this rule, if a visa number becomes immediately available since filing of the underlying Form I-140, the alien may tehn file Form I-485, together with associated forms and appropriate fees, with the Service office at which the visa petition was filed. When filing Form I-485, the alien will be required to attach a copy of the Form I-797, Notice of Action, establishing previous receipt and acceptance by the Service of the underlying Form I-140 visa petition. "

My I-140 has Receipt Date of 06/29/2007, Notice Date of 03/11/2008. Per Visa Bulletin, Number 107, Volume VIII, posted 06/12/2007, as amended by Visa Bulletin, Number 108, Volume IX, posted 07/02/2007 (note that the I-140 was filed before amendment was commissioned), my Priority Date became immediately available.