Major problem - I need help!!! :(

M

MountainDew

Registered Users (C)
Folks,

My old EAD expired on the 5th of March 2004. I applied for an EAD renewal on the 12th of January 2004. I know I applied late but I really did not know of proper procedures and laws and also cos' I had a lot happening on my personal/ family front. I am being extremely honest here.

I was under the false impression that one can continue working if he/ she applies for an EAD renewal before an EAD expires and if one has an EAD renewal receipt. I thought so cos' this was the case when I had applied for my H1B visa extension last year in Jan. I also applied on the 12th of January 2004 for this new EAD as I incorrectly thought that one can only do this once he/ she is within 60 days of an EAD about to expire.

In the meanwhile, I kept working and am still at my client site, all the way beyond the 5th of March 2004 till today, the 22nd of March 2004. What am I going to do now?!:(((((

I, also, cannot afford to stop working as I have major family and financial responsibilities (wife, old retired parents) right now too. God, I am so upset now! I had no idea!!! Can I somehow talk to my current employer and ask him to count my time from the 6th of March 2004 till the day that I get my interim EAD (10th April 2004) as "vacation of some sort" and get paid still?

I also want everyone to know that I got married to my gf, last year in November 2003 and she was born and raised here...so she is a US citizen by birth. Should I opt for a marriage-based GC now?

I am in panic mode, folks......please help me with advice!:(..what can happen?...should I just stay quite and hope that no one finds out? I mean they really cannot find out till they ask me for some kind of RFE, right?...I am barely 18 days away from getting an interim EAD!:(...I have never done anything wrong in my life and always done the right thing!:(...this only happened as I didn't know enough and cos' my attorney never told me what to do!

Mountain Dew
 
This is not legal opinion so talk to your immigration lawyer for sure.

1. I am very sure that your work from 3/5 till 3/22 is illegal. You could have taken leave of absence (as others have done and suggested on forums in this website). But you cannot have paid vacation, which would mean u r still on payroll. You need authorization to work. Working without authorization means working illegally.

You could take leave of absence from now till you get your iEAD.

I am **really** surprised your employers did not ask for your new EAD, but they let u continue past 3/5/04.

You could opt for marriage based GC, as long as you are sure you are not out of status. If it is found out that you are/were out of status for < 180 days, you could be facing penalty of having to leave country for 3 years.

BOTTOM LINE : Talk to your immigration lawyer and explore best possible option. This forum is not right place to discuss complicated issue as yours.
 
Well, my I-140 was approved successfully and I got my first EAD last year in March and I used it in August after more than 180 days to be employed by my current employer at my current client-site. I am still currently in status based on my AOS state.

I may have worked from the 6th of March until today but I have NOT been officially paid for this period yet. Hence, nothing is sealed on paper yet. My employer pays every 15 days at a "delay of 15 days". So, the paycheck that I got on the 15th of March was for the period 16th Feb - 29th Feb 2004. On the 30th of March, I will be paid for the period 1st March - 15th March 2004. I think I can still do something here. I can probably talk to my employer face-to-face and discuss possible alternative routes such as only paying me till the 5th of March 2004 and equally distributing the remainder of the amount in later paychecks or something.

What do you think, folks? My I-140 was approved....my I-485 was filed in November 2002. I have never got any RFEs and all my applications were approved successfully ahead of time. This time, this issue has only occurred as I didn't know enough and neither my attorney nor my employer told me about any laws. My new EAD is pending since 12th Jan 2004.
 
I think it will be better if u dont get paid for duration that ur waiting for EAD. Again talk to your lawyers to find best way out. Dont hesitate to spend some money if you have to. You know how INS works. Not knowing rules/laws is not an excuse.

AGAIN TALK TO YOUR LAWYERS. They might suggest u to file marriage based GC as a backup.
 
What if I do the following?

1. Meet with my employer and tell him that as of March 6th, he shouldnt have had me on payroll.
2. Ask employer to only pay me for March 1st - March 5th (due on the 30th of March) and then not pay me at all till I get my interim EAD (April 10th).
3. Consider my status as "leave of absence" from March 6th till the day I get my interim EAD.
4. The day I get my interim EAD, get me back on board the payroll and pay me my dues (March 6th till now) as a kind of "performance bonus" without tax deductions. I can then show this as additional income at the end of the year and pay taxes.

Just so you guys know, something like this had happened to me in '99 when I first got here. I had switched employers and the H1B transfer had not been initiated but I kept working. As soon as my H1B petition was filed, my employer back then paid me money for the period worked as a "signing" bonus and everything was fine.

What say?
 
Use your underline H1-B status

I am in similar concerns with my employment. As current year EAD is expired and EAD renewal application is still pending, I asked immigration specialist in my company a few weeks prior my current EAD expiration. I was told that one still could keep working as long as your underline H-1B is valid. If I read your post correctly, you already have your H-1B extension approved, right? In that case, your employment status is back on H-1B status again until your new EAD approved. It might have impact on things like switching to a new job, stopping working for secondary employer or some travel related restriction. However, your primary employment should be Ok as long as your H1-B is still valid.

Hope it helps.

Best luck.
 
How? I do have a valid H1B visa that is valid till Jan 31st, 2006. But, last year I quit my original GC sponsoring company that held my H1B and I joined this other company on my EAD. I also travelled out of the country and entered back in on my AP.

Technically, yes, I do have a valid H1B visa still stamped on my passport. But, how does any of this work my current situation?

I am considering meeting my employer tomorrow, telling him about this and asking him to not pay me a single cent till I get my interim EAD approved. Once my interim EAD is in my hand, I will ask him to pay me what he owes me....

Does this sound like a plan?

Theoretically, I would be deemed illegal only if the paycheck that I get on the 30th of March (for 1st - 15th March) has everything in it. I will only ask him to pay till the 6th of March.

What say?
 
I read this on kaamya.com

Also, it seems that since the INS is aware of the long processing time, they aren't actively enforcing the law against small companies who employ people with a temporary expired EAD while they are about to get their permanent one. That's why they said "it's up to your employer" whether you can still work.

Folks: I am seriously considering just staying shut and keep working for my current employer till I get my interim EAD even though my current EAD got expired.

Here are my reasons:

1. I never had RFEs issued in the past and everything went on smoothly.
2. In 1999, I worked for a company while they were about to initiate my H1B visa transfer. They paid me for those 6 weeks "later" once I got my H1B transferred. They gave the money to me as a signing bonus. Till then, they paid for my expenses.
3. My working on this expired EAD was not totally my fault. Neither my current employer not my attorney asked me or told me about any of this. It was only when I read some stuff here did I realize that I was doing something wrong.
4. How can the INS really find out about my working illegally? I havent sent an AC 21 letter yet. Once I get my interim EAD, I will send an AC21 letter a month down the line with new paystubs.
5. Since I have already been working beyond the 5th of March (the day my EAD expired)...what's another two weeks to getting the interim EAD? Nothing has happened to me yet.
6. I will be paid for the first 15 days of March on the 30th of March so all hope is not lost yet. If I get some real good sound advice and alternative approaches, I will act on it.
7. Why don't I just apply for my marriage-based GC as a backup anyway?

Tell me, what u think?...it's a risk but it's a calculated one! If I tell my employer now about this...he will be upset and things could go wrong for me on the job front and if I tell BCIS, they could ruin everything for me....SO, if I keep quite and wait it out, get my interim EAD and work for that next month properly on my interim EAD, I ought to be in the clear. And, just in case, I can always opt for a marriage-based GC, right?

I honestly feel that if I stay shut, it will be better. They wouldn't find out...my current employer is a small firm and I have never been in any trouble....so, why not?
 
I disagree with your approach. All it need is one RED FLAG to be discovered by INSand your application could be denied. If i was you, i would do what is right, instead of hoping that nothing will happen. Just my opinion.

Good luck !!
 
Yep, u r right, dude!:(

So, should I do the following?

1. First talk to my attorney somehow and fully understand all implications and take his suggestions down and follow his approach?
2. Based on what my attorney recommends, act on it accordingly.
3. Forget about my attorney and just immediately get in touch with my current employer face-to-face and inform him that this has happened and work something out. The thing is: I have major work responsibilities here and I am not even kidding on that front. Maybe, I can work out a deal with my employer such that I still keep working all the way till the day I get my interim EAD but tell him to not pay me a single cent till then. And, on the day that I get my interim EAD, ask him to put me back on payroll and pay me my dues for the time I have worked till then as some kind of "performance bonus". This way, my work doesnt get affected, everything is legal as he is theoretically not paying me during the time that I don't have a valid work permit. And, as soon as I get that permit, he can pay me off thru this bonus deal. This way, everyone could be happy and nothing would be illegal, right?

I honestly appreciate your sound and right advice. I so wish that I had known about these laws before!!!!
 
Check with your Company lawyer.
My friend company, is a very big consultancy company. Their lawyer told we can work as long as you have receipt notice.


If your employer agrees you can work.
 
That's exactly what I had thought. I do have my renewal EAD application receipt with me and I also had my digital pictures and fingerprints done in January itself.

I am so confused it's not even funny anymore! LOL
 
mountaindew,
I understand the pain you are going thru because I am in your same boat. My EAD expires on 04/02 and I applied for renewal on 2/17. Note that I don't have that 90 days stuff for iEAD. There are threads which discussed this same issue in length and detail.

It is wrong interpretation that you can continue to work with your receipt. Per another member M_S_IL, we can get a letter from our employer stating that it is an emergency and we are very important for the revenue of the company and also it should say that employee will be terminated without any kind of auth. from USCIS. This letter should be addressed to the INS dist. office wher you can go for iEAD.
I have contacted my employer for this letter.
Finally, I support smart_guy007's post because I am bit cautious regarding 485 denials. Now, in this political climate attributed by pressure from forums and immig. courts on USCIS, you will be in trouble if they find that you have continued in your work. So please act accordingly.
 
mountaindew,
Sure. our company attorney is 'preparing' this letter. Once I get that i can share the info with you.
 
Yes...thanks a lot...email it to me or whatever.......

The thing is, after a long time...things are working out for me...it's a good client with great work...I recently got married...my current employer is good too....and then this stuf happened for no fault of my own! Had my attorney or employer told me about any of this before, I would have thought things through....now it's kinda' too late as I have already worked beyond the 5th of March....

The only thing is.....I get paid every 15 days at a delay of "15 days"...which means on the 30th I will be paid for the period 1st - 15th....maybe I still have that time and hope factor wherein I can communicate with my employer and ask him to not pay me on the 30th for any time worked after the 5th?....if it is not mentioned on payroll, then I ought to be in the clear right?

And, maybe....he can just pay me everything off when I come back on the interim EAD or whatever?

What do you think?
 
I read this on the net too : "If the employee has an INS work permit (EAD), the employer must reverify the employee's continued eligibility to work by the time that EAD expires. With some exceptions, notably refugees and asylees whose legal status entitles them to work even if they have an expired EAD, an employer cannot allow a person with an expired EAD to work until s/he gets a new, valid, EAD. Employers would be wise to remind the employee three months in advance of the EAD's expiration date to file to renew the EAD, because of lengthy INS backlogs in issuing renewed EADs. The INS has acknowledged this backlog problem, at least for persons whose EADs are based on pending asylum applications (bearing the code C-8). If the INS issues the EAD after the prior card has already expired, it backdates the new card to the prior card's expiration date, as long as the renewal application was filed before the earlier card expired. This policy protects both the employee and the employer if there is an inadvertent gap between the expiration of the old card and issuance of the renewed EAD."

So, if my new EAD specifies a start date of when the old one expired....how is anything illegal that I do now?...cos' I did file for my renewal EAD before the old EAD had expired!?
 
mountaindew,
My immediate suggestion would be to go to a nearest INS dist. office and request for an iEAD. I am not aware of the stuff you say that you got from net.Even this statement explains the work continuation for Asylum applicants only. Not for the employment based.

"The INS has acknowledged this backlog problem, at least for persons whose EADs are based on pending asylum applications (bearing the code C-8). If the INS issues the EAD after the prior card has already expired, it backdates the new card to the prior card's expiration date, as long as the renewal application was filed before the earlier card expired. This policy protects both the employee and the employer if there is an inadvertent gap between the expiration of the old card and issuance of the renewed EAD."

All I have learnt from others is that it is illegal to work. I have given the threads of the previous discussions. Please make a judgement by yourself.

http://www.immigrationportal.com/sh...threadid=104199
http://boards.immigration.com/showthread.php?s=&threadid=116407

In these threads you will find INS regulations on expired EAD.
 
I agree with govgc. Here is what i will like to tell MountainDew. Your application for GC has been going on smoothly so far and you did everything right. Even if it was honest mistake that u were late in filing for new EAD, i still think INS will still consider it your fault, whenever the find out about it.

So act very cautiously and do what is right as per law, and not what is right as per your own conviction and opinion.
 
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