legal status if 485 is denied...?

[gcok2006]

The attorney of one friend claims: it is not safe if you are pending on 485 WITHOUT H1-B. 'Cause, if 485 is denied, you have been out of status from the DATE when you forfeited your H1-B, such as when you used AP.

But my understanding is even if 485 is denied, you just have to leave immediately, but there is no problem of "you have been out-of-status for long time...".

Comments?

 

[Axxe]

The attorney of one friend claims: it is not safe if you are pending on 485 WITHOUT H1-B. 'Cause, if 485 is denied, you have been out of status from the DATE when you forfeited your H1-B, such as when you used AP.

1. Using AP does not forfeit your H1-B
2. You are NOT out of status from the RD, only from the denial date.

Suggest to your friend to change his attorney.

 

[braniand]

Yes, however, if you file an appeal then your status continues till the final decision. This will give you more time to do something else.

 

[compass]

That is not correct.

If 485 is denied and you don't have any other basis to stay here (ie., valid non immigrant status); then clock starts ticking on the 180 days unlawful presence from the date of denial (note: you are illegal once the 485 gets denied). Filing an appeal or motion to reopen without any other status doesn't give one a right to stay in usa. (this has been reinforced many times by uscis in various memos/guidance).

I fully agree with unitednations. Filing appeal does not give you a legal status to remain in US while waiting for decision.
My attorney suggested following scenario in case of denial:
filing application for change of the status to B-1, which is non-immigrant 'business' visa, and ask 6 months and explain that you got denied and plan to leave the country but need this time to take care about your business: sell car, sell house (if you have one), take care of bank account, finish school year for kid, etc.; note that it should be B-1 'business' and not B-2 'tourist', you should not ask tourist visa to look around US, ask bor 'business'. trick was, application should reach INS before or in same day as denial, so you are at this moment in legal status, which is impossible of course, so the advice was to prepare this papers and be ready to date them and fedex to INS.
According to my attorney, you are legal in US after filing such application since the date INS receives it, while waiting for decision, even if they deny your B-1, you will be legal until you get denial (processing may take several months) and then have to leave 'immediately' which I think may mean 10 days or so.
I am not sure if this works for I-485 denial, my case was I had I-140 denial and I was afraid my H-1 will be dead soon (company run out of money) so I planned this for change H-1 to B-1 in case my H-1 will collapse. Fortunately I found another job and tansferred my H-1 and then appeal for I-140 was approved and I filed I-485 which was also approved recently.
But I did what my attorney suggested, filled all paperwork for my family for B-1 application and had them ready....

 

[jcgc]

So whats the lesson here

So does it mean that while 485 is pending - it is sensible to continue renewing the H1 status even if EAD/AP is available. And When is one assumed to have given up H1 status?

1. re-entering the US using AP.
2. using the temporary work permit (EAD).

 

[Aakash28]

I am currently on EAD status waiting for my I-485 approval. Now I always thought that even if my I-485 gets denied I can still stay in US for 180 days continuing to work with my current employer on EAD. And I can later file for an appeal to re-open my case. I have seen many cases in this forum where people have got denied and they appeal later and get approved.

Now I am totally confused after what unitednations have specified over here. Please explain as to what are the options left if one's I-485 get denied and one want's to retry without leaving the country.

Thanks

 

[go0dfella]

First: if you don't have any non immigrant status and 485 gets denied, you are accruing unlawful prescence from the date of the denial. If the police, uscis, ice catch you at that point then they can deport you.

The 180 days isn't a grace period from removal proceedings but rather a grace period of the 3/10 year bars.

Appealing or filing a motion to reopen on the 485 without having a non immigrant status doesn't give you any legal right to stay in USA.

If your 485 hasn't been reopoened within 180 days of denial or you haven't been able to get back onto non immirant status then you should leave the country.

united nations,

i think my situation fits perfect as wheather one should maintain H1 status or not.
i have I-140 pending with Nebraska (going through RFE) . my division (not whole comany) has been acquired by another company which means my job would be with new company.
existing company said they will help me in my GC application. my question is if my 1-140 gets approved and 485 gets denied at later stage then what would be my status? i am thinking about using EAD to continue working for next company.
or
i should file new H1 with new company to be on safe side. if i do that then would that have any affect on my existing GC application?
and
can you go back to H1 status after 485 is denied.

please share some thoughts

 

[rollingstone]

Reenter after reopening I-485

unitednations,

If what you say is true, and if the applicant has to go back to home country after I-485 denial, what are the recourses available? Can his/her lawyer
continue with the MTR while the applicant is abroad. If the application is
ultimately accepted, will he be able to reenter on AP? If not, can the 485 be converted to consular processing case?

Also, before denial doesn't uscis issue a Notice of Intent to Deny, or does the application gets denied suddenly without warning.

First: if you don't have any non immigrant status and 485 gets denied, you are accruing unlawful prescence from the date of the denial. If the police, uscis, ice catch you at that point then they can deport you.

The 180 days isn't a grace period from removal proceedings but rather a grace period of the 3/10 year bars.

Appealing or filing a motion to reopen on the 485 without having a non immigrant status doesn't give you any legal right to stay in USA.

If your 485 hasn't been reopoened within 180 days of denial or you haven't been able to get back onto non immirant status then you should leave the country.

 

[immiq]

The attorney of one friend claims: it is not safe if you are pending on 485 WITHOUT H1-B. 'Cause, if 485 is denied, you have been out of status from the DATE when you forfeited your H1-B, such as when you used AP.

But my understanding is even if 485 is denied, you just have to leave immediately, but there is no problem of "you have been out-of-status for long time...".

Comments?

It may be better to say you will stay illegally after your I-485 gets denied if you have no H-1B or any other nonimmigrant status. So, why don’t you keep your H-1B status until your I-485 gets approved?

 

[rollingstone]

It may be better to say you will stay illegally after your I-485 gets denied if you have no H-1B or any other nonimmigrant status. So, why don’t you keep your H-1B status until your I-485 gets approved?

Is it even possible to obtain H1-B visa extension after you have filed I-485 (and you're on seventh year extension)?

 

[jirijunior]

my petition for Alien worker status, which was originally filed on 04-27-01under 245 i.
Subsequently my petition I 140 was approved on 02-09-04 and also application I 765 for employment authorization was approved.

Next in the process towards citizenship I filed application I 485 to adjust to permanent residence status. The application was
filed on 03-31-04. One year later my case was transfered from the Nebraska Service Center to the INS Chicago, IL office in order
to speed processing of my case. I was interviewed in September, 2005.

On 11-10-05 I have received an Automatic Revocation of my approved Petition for Alien Worker resulting in denial of the pending
Application for Adjustement of Status. According to the IL. Secretary of State records my emloyers company, Des-Con, Inc., had been
disolved on 09-01-04. In fact, De -Con, Inc. was and is functioning company with it's taxes payed and up to date.

This decision was made in error, Des-Con, Inc. was a regular functioning fully operational company that simply forgot to file
a Franchise Tax Form with the Secretary of State's Office, which resulted in a "involuntary dissolution". Involuntary dissolutions are
temporary for a period of 3 years permitting a company to pay its back franchise taxes. On payment of the franchise tax the company
is retroactively reinstates. Company paid the fee on 10-13-05 and was immediately reinstated.

My lawyer filed a motion to reopen where he asked to reverse the revocation and reopen my application
for adjustment of status on 11-16-05.

Because as of yet I have not received any statement or further communication from the INS, currently I am without status.
It has been more than eight months since motion to reopen was filed and neither I or my lawyer know how to proceed or what
next steps to take.

I would like to kindly ask for your help to find solution for my situtation.

 

[javaxmlsoapdev]

If you have h1-b valid from any other company while your I-485 is denied then easier way to get back on h1-b is to go to canada and use Auto revalidation to enter to USA.

 

[jadoo85]

Tough Situation

I have I40/485 pending from one company, and working on EAD now for multiple companies. The company who originally applied I140/485/EAD is no longer in business but the petitions are pending with an RFE response due by Sept 14th. We have approved labor from another company that I am working for now, and getting ready to file I 140 from that company with approved PERM.
If I don't reply to RFE, I 140 will be denied. Should I apply another I 485 to stay in status with new I 140 or is it possible to file new I 140 and attach previous pending 485 (from a different employer) with new I 140?

THANKS for comments.

Jadoo85

 

[go0dfella]

Since your 485 hasn't been outstanding for more then 180 days, then uscis position is that if there was a merger/acquisition or a capital change, then the "new" company should file an amended 140 and show that they are successor in interest.

If there is just a partial buyout then generally, there is no successor in interest and uscis will deny the 140.

If a person uses ead and let's h-1b expire and you have exhausted full six years of h-1 then it is extremely difficult to get back on h-1. It can be done but is extemely difficult. Many people in cybersoftech were in this situation. The strategies used was to recoup any time spent outside usa. USCIS in some cases gave this amount of time back and approved the h-1 without I-94 card. The approval could have been for maybe two months. People had to go for visa stamping got I-94 card for two months and then when they were safely back in USA, they were able to extend another year based on a substitue labor.

The reason why uscis wouldn't just give another year off the bat was that their position is that once you exhaust six years of h-1b; the law says ow to extend. USCIS position is to be able to "extend" presumes that you are still on h-1b. If you are not on h-1b then you cannot extend.

united nations,
first of all thanks for your response.
as in my case my CEO is ready to keep me on payroll until the end of october so there is no issue of 180 days. he also said they would provide further documentation if uscis request for it, bottom line they will help me in my gc application. company which has bought our division also said they will continue sponsorship if i want to change.

now 180 days period is not the issue here. if 1-40 gets denied then ofcourse i will re-start everything with new company however if 1-40 gets approved, and I-485 is penidng, at that point what is the best option??

1: should i file new H1 with new company to be on safe side , incase 485 gets denied. but would that have any affect on GC application.
2: or is it possible to get back on H1 if 485 is denied, assuming i have not finished all my 6 years of H1 ( i am in 5th year)

appreciate ur response

 

[javaxmlsoapdev]

1: should i file new H1 with new company to be on safe side , incase 485 gets denied. but would that have any affect on GC application.
2: or is it possible to get back on H1 if 485 is denied, assuming i have not finished all my 6 years of H1 ( i am in 5th year)

appreciate ur response

Refer my previous post. If you have h1-b valid when I-485 is denied, you can get back on h1-b status. Use Auto revalidation. No need to file for new h1-b.

 

[go0dfella]

Refer my previous post. If you have h1-b valid when I-485 is denied, you can get back on h1-b status. Use Auto revalidation. No need to file for new h1-b.

what if you want to avoid travelling abroad??

 

[javaxmlsoapdev]

what if you want to avoid travelling abroad??

Auto revalidation doesn't require you to get h1-b stamped in passport (if already expired), if that's what your concerned is? With valid I-797 h1-b approval and unexpired I-94 (attached to it), you can enter into USA from Candada using auto revalidation.

 

[go0dfella]

Auto revalidation doesn't require you to get h1-b stamped in passport (if already expired), if that's what your concerned is? With valid I-797 h1-b approval and unexpired I-94 (attached to it), you can enter into USA from Candada using auto revalidation.

thanks for response, yes that was my concern, i don't have Visa stamped in my passport.