NIW-EB2-I 485 is likely to be denied-What will be the options??

R

Rock70

Registered Users (C)
1.Came to US on J1 in organization A and after 2.3 years changed to organization B. The RO issued DS2019 to begin a new J program without transferring J1 from organization A to B. I 94 D/S endorsement. The end date on previous program and new program overlapped.

2. Applied for J1 wavier and approved based on no objection.

3. Before the end date on the last DS 2019, applied for concurrent NIW (I140, I485,EAD), did not travel out of U.S. any time. The NIW filing took place after 7 months of failure to transfer J1 from employer A to B. Working on EAD. It is 2 years now that I am in U.S. after failure has occurred in transfer of my J1.

4.Recently during security check for select agent releated research work, Attorney General CJIS/FBI determined that my presence in the U.S. is unlawful and reported to employer. Employer informed me of this, and not by the attorney general directly.

5. Employer gave time to file appeal with the Attorney General;s office, CJIS-FBI. Hired a well known attorney, who appealed that based on pending I485 I am lawful in US according to 8 USC 1255. He wrote that visa number is not available for NIW for retrogressed country, currently. Waiting to hear decision from employer who forwarded the appeal to the attorney general CJIS-FBI. The I 485 is still pending with USCIS, no RFE any time, so far. As of now USCIS is not involved in this issue. My GC name check is pending with FBI.

Questions:

1. What could be the outcome of this violation and options available to remain in the U.S.?

2. Can attorney general ask for my I485 and NIW file from USCIS and then direct USCIS to deny it?

3. 245 (k) may not cover me because it was more that 180 days to file NIW after J1 transfer failure occurred.

4. Because the J1 transfer failure being not my mistake (was mistake of RO) will my I485 be approved.

Please give opinion.

Rock70
 
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Getting too complicated

1. Your J1 is mistakenly not transferred, rather you were given a fresh J1. Then your Waiver will not hold good for the new J1.

2. Since your waiver is not good for your current J1, your I-485 will not be valid, and hence there would be chance for the denial of your I-485
 
Real Canadian/Tripple citizen please assess the case

Skvadivel,

When I applied for no objection (NORI) based J1 wavier, I submitted all the IAP66 and DS2019 including the DS2019 from employer B. So department of state must have looked in it. When I recived favourable recommendation from DOS it said after careful and thorough review of the documents submitted by you, a favourable J1 wavier is granted. The USCIS also approved J1 wavier finally.

So I do not think J 1 wavier would not be valid for the second J1 program as well.

The situation is intersting and challenging:

I 94 has D/S no end date.
Both J1 programs overlapped by dates nd no gap. Per DOS, to begin a new J1 program there should be 1 year gap (per old rules 3 year J1)
Concurrent NIW (I140 and I485) were filed 3 months before the end date on the last DS2019 end date , but it was already little over 240 days from the point J1 transfer failure occurred to the filing of NIW.
The USCIS approved I 140 and EAD, and kept I 485 pending due to retroression and later due to NC pending.

As per 245 k, one can not be out of AOS >180 days. Mine are over >180 days from failure to transfer J1.

The important question is that basically whether I went out of status or not?
However based on pending I485, the attorney says I am in status currently.

Any views. This situation is a very complicated example for AOS, I guess.

Rock70
 
Real Canadian/Tripple citizen and Other Pundits please assess the case

Skvadivel,

When I applied for no objection (NORI) based J1 wavier, I submitted all the IAP66 and DS2019 including the DS2019 from employer B. So department of state must have looked in it. When I recived favourable recommendation from DOS it said after careful and thorough review of the documents submitted by you, a favourable J1 wavier is granted. The USCIS also approved J1 wavier finally.

So I do not think J 1 wavier would not be valid for the second J1 program as well.

The situation is intersting and challenging:

I 94 has D/S no end date.
Both J1 programs overlapped by dates nd no gap. Per DOS, to begin a new J1 program there should be 1 year gap (per old rules 3 year J1)
Concurrent NIW (I140 and I485) were filed 3 months before the end date on the last DS2019 end date , but it was already little over 240 days from the point J1 transfer failure occurred to the filing of NIW.
The USCIS approved I 140 and EAD, and kept I 485 pending due to retroression and later due to NC pending.

As per 245 k, one can not be out of AOS >180 days. Mine are over >180 days from failure to transfer J1.

The important question is that basically whether I went out of status or not?
However based on pending I485, the attorney says I am in status currently.

Any views. This situation is a very complicated example for AOS, I guess.

Rock70
 
I-9 will be handly

Ask you employer to get the copy of your I-9 which you should have signed with your employer (contains start date, EAD number). This would clearly prove that you are in EAD status which is absoultely valid. If you can show your I-9 from the end date of previous J1, I think you will be fine.
The whole chaos could have arrived due to the due J1.
 
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Skvadivel,
My first EAD was approved on 10/2005 that was well before end date on my last DS2019 (12/2005). I switched to using EAD from 10/2005 and filed I-9 with the employer. I never worked without authorization meaning RO issued DS2019 or the valid EAD. I am running on the third EAD currently that has end date in 09/2008. I will have those I 9 copies from the employer.

The attorney in the appeal letter to my employer indicated that he has approved J1 wavier and I 140, pending I485 and timely filed and approved EADs. Based on these I am in status per 8 USC 1255.

If I am determined out of status finally, will clock start from the day J1 transfer failure occurred or the day of attorney generals determination because of D/S status on I-94.

Thanks
Rock70
 
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Out of status for D/S I-94 holders is usually determined by an immigration judge of DOJ official.

Just to clarify: In all the confusion above, did you mention why the Attorney General deemed you unlawfully present in the US? What reason did the AG give to your employer? Did the AG letter mention your J-1 problem at all?
 
jk0274, Thanks for bringing up the point/basis on unlawful presense determined by Attorney General. I forgot to mention that in the first post.

The attorney general (AG) did not provide any reason or basis of determination of my unlawful presense. We did not receive any letter from AG's CJIS/FBI office. We received a letter from my current employers office on the employers stationary/letter head. We were given one month time to file appeal to the employers office. We filed within one week and employer forwarded the appeal to the AG CJIS/FBI.

Because the attorney general CJIS/FBI office did not provide the reason of unlawful presence to the employer, we do not know about it. Me and my attorney know ( I told to attorney) that there was problem with my J1 transfer. He said that we should not bring it up ourself in the appeal and let the attorney general's office provide the reason. The lawyer acted smart and did not provide copies of my I 94, IAP 66, DS 2019 but provided everything starting from J1 wavier approved by USCIS, I140 approval,I485 pending, EAD copies. The lawyer said that we will provide the IAP66 and DS2019 copies if necessary in the latter stage. I was strongly of the opinion to provide all the paper work related to J1 visa, and insisted to the lawyer on submission everything along with the appeal, but he said that he want to keep it simple for now. The appeal was done on attorneys stationary/letter head and we were not asked by the employer to file any special form etc.

To add on: When I learnt about J1 transfer failure, it was already 240 days from the point of J1 transfer failure occurred. I already had my J1 wavier application pending with DOS based on no objection NORI. The RO was in process of filing re-instatement but before filing DOS approved / recommended J1 wavier. Once J1 wavier is approved by DOS, re-instatement of J! can not be done per rule. So filing the re-instatement with DOS was abandoned. So I ended up filing the concurrent NIW. I140 was approved in 15 days in 09/2005, but I 485 pending due to NC pending and now additional retrogression. Dependent NC is cleared within months.

Again I would like to mention that I did not receive any RFE/denial of I 485 from USCIS as on today.

My attorney has asked in the appeal directed to the Attorney General CJIS/FBI that provide us with the basis of determination of my unlawful presense in the U.S. My attorney wrote in appeal that AG's determination as my presense in U.S. as unlawful is clearly in error. My attorney wrote in the appeal that based on the pending I 485 and approved EAD in use, my presense in the U.S. is lawful per 8 USC 1255.

I will be applying for Canada immigration in January first week, but might be too late , if the I 485 is denied in the next month or AG dismiss appeal. I am also looking for jobs in Canada in area of viral infectious diseases and vaccine development.

Thanks
Rock70
 
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Your lawyer may be right. You already said that USCIS is not involved, and so far your case is pending. So just let the AG's office bring forth their reasons. It may be a simple clerical error that has nothing to do with your J-1.
 
If you have started working on EAD before the end of first J1. You should not have any problem.

USCIS/DOS does not have any access to I-9. There is no way that they can find whether you are working on EAD or J1. I-9 is kept with employer.

The whole situation has arised because of your denial (or transfer) of J1 and they are not aware that you are on EAD.

You should be fine
 
skvadivel,

I would like to correct you. I am not yet denied any benefit by the DOS/USCIS. My J1 re-instatement was not denied by the DOS. In fact we abandoned filing J1 re-instatement because the J1 wavier was approved. Once J1 wavier is approved, J1 re-instatement can not be filed, and even if filed that will be denied by DOS per rule, and hence we did not file it.

Yes, I started working on EAD before end date on my last DS2019 that was not a transfer (not linked to previous program because no transfer of program) but was to begin a new J1 program.

What I feel is that my I 94 has not been attached /annotated/linked to the new J1 program in the DOS/DHS system. Therefore in my DOJ/CJIS/FBI security check (related to job) it must be showing overstay based on I 94.

Rock70
 
Unlawful presence rules

http://www.mnllp.com/engunlawfulinfo.html


Unlawful Presence Start Date
There is a difference between a "violation of status" "out of status" and "overstay (unlawful presence)."

Violation of Status occurs when a nonimmigrant takes action that is not within the scope of the visa category.


......- example: F-1 student working without authorization.
Out of Status occurs when a duration of status has expired, and/or when a "violation of status" occurs (and when such a determination is made by the US CIS).

......- example: H-1B specialist with an expired visa "status" (duration of status) document.

......- example: F-1 student working without authorization (violation of status) and a determination of violation made by the US CIS.

Overstay (Unlawful Presence) occurs when an individual is "out of status (expired duration of status)" (and if he/she does not have "authorized stay.")

......- example: B-2 tourist with an expired visa "status" (duration of status) document and who files an untimely

...........change of status application (and therefore does not have "authorized stay")

The period for unlawful presence (overstay) begins on:

1) The expiration date* of the visa "status" document (I-94 Arrival/Departure Card), or
2) status violation**, determined by an immigration judge, or
3) status violation**, determined by the USCIS during the course of adjudicating a benefit application.

*No date, but "D/S" on I-94 Arrival/Departure Card (typical "D/S" holders are F, M, J and I visa status holders).

For those who do not have an expiration date on the I-94 card, but "D/S" (duration of status), there can be no "unlawful presence," unless (2) or (3) above.

**Status Violation: i.e., unauthorized employment; for a student, a failure to pursue a full course load; for nonimmigrant worker, a violation of the terms of the particular visa.

Important: A status violation determination must be made by an immigration judge or the USCIS, for the individual to be considered to be unlawfully present. Therefore, even if a person is in "violation of status," he/she may not be considered as being unlawfully present -- unless there is a determination.
...

Students With "D/S"

A nonimmigrant student does not accrue unlawful presence unless a status violation determination has been made.

Students do not have an expiration date on the visa "status" document, but "D/S" (duration of status) on the I-94 Arrival/Departure Card (typical "D/S" holders are F, M, J and I visa status holders).

Unless a status violation determination is made, there is no unlawful presence, even if there are status violations.

Therefore, if a "D/S" student files for "re-instatement" to F-1 status, he/she may trigger the USCIS to make a determination that there is a status violation. If this determination is made, unlawful presence begins on the date of the determination.)


Important -- Overseas Travel May Trigger Overstay Period: Unlawful presence accrued prior to filing the adjustment of status application will be considered unlawful presence (but only triggered if he/she departs the United States). If an individual, who has accrued more than 180 days of unlawful presence before filing an adjustment of status application under INA 245(a) or 245(i), departs the U.S. using advance parole/travel document, it will trigger the 3/10 year bar. (The same for "V" visa holders. Even if re-entry is allowed, departure will trigger the 3/10 year bar.)

Because the applicant needs to establish admissibility and eligibility for an immigrant visa under INA 245(a)(2) at the time the adjustment of status determination is made (for example, on the date of the adjustment interview), even if an applicant has "authorized stay" during the pending I-485 adjustment application, by departing, the prior overstay period subject to the 3/10 year bar can be trigged. In this case, the applicant will be considered inadmissible under INA 212(a)(9)(B)(i).

Note: Therefore, file a I-485 adjustment of status application within 180 days of the expiration of the visa "status" document (I-94 Arrival/Departure Card), and if "D/S," file before 180 days or more of violation status. What does this highlighted in red text mean????. My situation is something like this, if I am considered out of status due to my J1 transfer failure, it was over >180 days by the time I filed concurrent NIW and my I 94 has D/S.

(See limitation, below, about those who have valid visa "stickers" based on a Visa Waiver Program (VWP).
 
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Real Canadian and other pundits any suggestion/comments

Real Canadian,
Please go through the thread and suggest the outcome. Any suggestions or wavier possible if EB based I 485 is denied (I 485 pending without any RFE for last over 2 years) and if immediate relatives are not USC?

Rock 70
 
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