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Poput

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URGENT - Please Help485 Issue - RFE while in School Full Time

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Folks:

I need some help urgently. I'm in school FT on a leave of absence from my employer. I received an RFE after my fingerprinting was done. (Not sure why I did) because my employer is a big 4 firm where I've been working for 7 years straight. Prior to that, I was in college in the US as well.) The employer has provided a letter that they are continuing to sponsor the application and that they intend to hire me back upon completion of my course work.

One of the documents the BCIS has requested is recent pay stubs. Since I'm in school full time I don't have recent pay stubs. Now here are the questions I have based on the (incompetent) lawyers' advice:

1) Has anyone been in this situation and what was their experience.
2) What are the chances of an NOID if I don't provide the pay stubs?
3) the lawyers suggest that I can 1) not provide a timeline of my return (quite risky) (2) provide a timeline but it has to be a short time fram (2-3 months) that I will be working for my emloyer (little less risky) or (3) go back to work so that they can say I am back at work now and can provide pay stubs going forth (least risky)
Does anyone have any advice or references of lawyers who may be able to help. This is a very sticky situation for me and any help is appreciated.
 
I think 3rd choice is best
"go back to work so that they can say I am back at work now and can provide pay stubs going forth (least risky)"

Can't you be shown on sabbatical? Talk to lawyer and company HR about this option.

good luck!
 
What is your status now, H1B? If you have dropped your emloyment with H1B employer and gone to school more than 6 months, you will have a problem with your I-485 no matter you now go back to work or not.
 
Although employment can be defined in many different ways, to the CIS it means having a paid job. Being on an unpaid leave -- even if it is excused by the employer, does not count. This is why the CIS often asks for income tax returns and pay stubs as additional evidence of your employment. Being on sabbatical or medical/maternity leave should count as employment so far as it is PAID. Hopefully you have been a full time student less than 180 days.
As for the option 3) it probably helps a bit, but it won't remedy the problem of having a duration of nonemployment longer than 6 mos.
 
Thanks for the replies - follow up questions

what's the deal with 180 days? I was on H-1 B but did not renew because I was told I didn't need to because the EAD would suffice.

My last pay check was 135 days ago and I could be back at work before the 180 days. Seems like that is the best option at this point. But I need to fet a better understanding

Could someone explain the 180 days to me?
 
First of all, you are going to be fine.

180 days -- that's just the cutoff beyond which the severe penalty of 3 year bar for entering/staying in the US kicks in. Since H1b is based on employment, if you hadn't worked/renewed H1b for more than 6 mos, that would have made you faced the penalty. But apparently that was NOT the case here.

The CIS could and actually did ask you about your "possible" out-of-status period. When I wrote you previously, I did not know about your EAD. But even with your EAD, you might have a minor problem. Having EAD protects you from being out of status, ONLY IF EAD is used the way it is supposed to be (i.e., for employment). So, in order to maintain legal status with EAD/i485 pending, you need to hold on to your paid job.
 
hanging in here said:
180 days -- that's just the cutoff beyond which the severe penalty of 3 year bar for entering/staying in the US kicks in. Since H1b is based on employment, if you hadn't worked/renewed H1b for more than 6 mos, that would have made you faced the penalty. But apparently that was NOT the case here.
Click to expand...

You guys have it all wrong. First, the 3-year bar only kicks in if he overstays an I-94 by 180 days or more. If you have an H-1B, get admitted for the 3 years and then lose your job after 1 day, you can stay in the US for 2 years and 364 days before you start accumulating days towards the bar. (Keep in mind you'd still be out of status and subject to deportation, so I'm not exactly advising this).

However, our original poster has an I-485 filed, which means that he is in legal status no matter what he does. He could quit his job, loaf on the coach and watch Oprah all day and still be in legal status.

Having EAD protects you from being out of status, ONLY IF EAD is used the way it is supposed to be (i.e., for employment).
Click to expand...

An EAD is neither evidence of nor provides legal status in the US. Only the underlying basis for that EAD (a filed I-485, or valid L-2, E-2 or J-2 status) does that.

So, in order to maintain legal status with EAD/i485 pending, you need to hold on to your paid job.
Click to expand...

Not at all. My wife had an EAD for a year, and never worked a day during that time. No problem.
 
Poput said:
One of the documents the BCIS has requested is recent pay stubs. Since I'm in school full time I don't have recent pay stubs.
Click to expand...

If you don't have pay stubs, then you don't have them. USCIS wants evidence that either you're working for the petitioning employer (best) or at the very least they want some sort of proof that you're actually going to go work for them when the I-485 is approved.

1) not provide a timeline of my return (quite risky)
Click to expand...

Your attorneys are correct. If you do this, USCIS can properly conclude that you do not intend to work for the petitioner (or have no job available) and deny the adjustment.

provide a timeline but it has to be a short time fram (2-3 months) that I will be working for my emloyer (little less risky)
Click to expand...

You'd need to provide strong evidence in the form of letters from both you and your employer, clearly mentioning your time at school, a clear end date and mutually agreed-upon start date at your company.

go back to work so that they can say I am back at work now and can provide pay stubs going forth (least risky)
Click to expand...

That would be the best; why not take a semester or two as a part-time student?
 
The real Canadian:
I'm learning a lot from your responses to poput. (And sorry, poput, if my responses misinformed you in any way!)

So please also help me understand i-94 better.

In my case at least, i-94 period is exactly the same as the duration for which H1b is granted. This was the case upon each renewal although I don't have i-94 anymore -- since when I filed i485 I've been working with EAD.

My question is, when the CIS asks for the most recent i-94, what do they mean by "most recent"? For me, could it be the i-94 card that is at the bottom of the most recently issued H1b renewal approval notice? I have never left the US since I renewed my H1b for the first time, and so I never used any i-94 card attached at the bottom of the approval notice. Or would it be the i-94 that's in my passport with a stamp I got upon my last reentry to the US? Chronologically, my last entry to US precedes the issue date of the most recent (unused) i-94 card..
 
hanging in here said:
My question is, when the CIS asks for the most recent i-94, what do they mean by "most recent"? For me, could it be the i-94 card that is at the bottom of the most recently issued H1b renewal approval notice? I have never left the US since I renewed my H1b for the first time, and so I never used any i-94 card attached at the bottom of the approval notice. Or would it be the i-94 that's in my passport with a stamp I got upon my last reentry to the US? Chronologically, my last entry to US precedes the issue date of the most recent (unused) i-94 card..
Click to expand...

If I-94 issued with H1 approval notice is later than your last entry, then your H1 I-94 is the most recent I-94.
I-94 is the document that proves your current status in USA when you are in visa. So the I-94 document that covers you on today's date (the very day when you are looking for your I-94) is the "recent I-94". However, AOS stage is an exception. It's possible that in AOS stage your recent (or last) I-94 is already expired and that's perfectly fine.
 
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hanging in here said:
My question is, when the CIS asks for the most recent i-94, what do they mean by "most recent"? For me, could it be the i-94 card that is at the bottom of the most recently issued H1b renewal approval notice? I have never left the US since I renewed my H1b for the first time, and so I never used any i-94 card attached at the bottom of the approval notice.
Click to expand...

The tear-off portion attached to the I-797 is an I-94. It may be printed on different paper and look a little different, but it's an I-94 with the same legal weight as the cardboard card you got at the POE. (If you look carefully, the number at the top left will be the same).
 
TheRealCanadian & pralay,
Thanks a lot for your responses. So the i-94 card in the most recent h1b approval notice it is.. And yes, the numbers in both i-94 docs are the same.
 
thanks - real canadian, pralay and all else

Certainly helped me make a decision. I'm going back to work, and will do school FT as well. MIght as well get a whole tree stuck up my ... ;-)

appreciate your help.
 
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