Number of days stay legally allowed after I140 / I485 denial ?

[Needyperson8]

My I94 expired on June 30th, 04 & I am now on my I140 / I 485 pending status I am working with my EAD cards.

1) In case I140 or I485 is denied, how many days will I be legally allowed to stay in the country ?

2) Are the nbr of days counted from the date of denial of the I140 / I485 OR they count the nbr of days from expiry of I94 ?

Any other valuable guidance will be welcome in this regard.

 

[will_get_there]

0 days after 485 denial....

As per my knowledge if you are on EAD and ur. 140 is denied, you are in status till you get a 485 denial. The day ur. 485 is denied, you are out of status. Now the number of days you need to be out of status for 3 year and 10 year bar to kick in is I think 30 days and 6 months respectively.

will_get_there
----------------
I am not a Lawyer and this is my view, not an advice or suggestion.

 

[GCChaahiye]

Now the number of days you need to be out of status for 3 year and 10 year bar to kick in is I think 30 days and 6 months respectively.

For 3 year bar - 6 months of illegal stay

For 10 year bar - 12 months of illegal stay.

 

[Needyperson8]

Thanks for your guidance.

1) I was under the impression that one goes out of status immidiately, if the I140 is denied !? Can some one carify this ?

2) The nbr of days that one can stay after denial start to count from date of denial notice or from date of expiry of I94 ?

 

[tammy2]

Thanks for your guidance.

1) I was under the impression that one goes out of status immidiately, if the I140 is denied !? Can some one carify this ?

2) The nbr of days that one can stay after denial start to count from date of denial notice or from date of expiry of I94 ?

Although 3 year bar kicks in after six month illegal stay, someone should keep it very short. In one of the cases I know when I-485 was denied the denial notice was given with old date and asked to vacate the US within 3 days.

 

[GCBeast]

Can I get H1-B visa 7th yr extension?

Sorry.. if this is not right thread. Will appreciate comments.

EB3/RIR
NSC-ND: I-140/I-485/EAD/AP: 03-19-04
EAD/AP approved: 05/2004
FP complete: 05-27-2004

My H1 6 yrs will be exhausted in Jan 2005. Got LC approved in Jan 2004.

Given following conditions, can I apply for H1 7th yr extension as I don't want to be on AOS status (to be on safer side).
1. Not used EAD/AP.
2. I-140/I-485 are pending.
3. If I can get H1 7th yr ext, what happens if I-140/I-485 get denied (god forbid)?

Thanks alot!

 

[GCBeast]

Thanks so much UnitedNations. If that's the case it's huge relief.

I just wish either I get I-140/I-485 approved with no problems soon or USCIS maintain their snail speed of processing my I-140/I-485. Either ways I am

 

[kuchnakaho]

To get 7th year extension;

labor certificate has to be filed 365 days; looks like you will meet that criteria

140/485 have to be filed if the labor certification has been approved; you meet that criteria

if 140 is denied 485 will also be denied; however, uscis is on record as stating that if 140/485 have been appealed they will not consider them denied for purposes of 7th year extension.

7th year extension is the way to go, espcially if the 140 hasn't been adjudicated yet. Reason I say this is that if 140 has RFE or been denied/appealed, uscis puts a hold on AP and EAD if they haven't been adjudicated yet. You would be in status but you wouldn't be able to work/leave the country in the absence of h-1b.

Common question is what happens if I have H-1B 7th year extension and my petitions get denied even denied on appeal. Answer is that it doesn't invalidate the H-1b 7th year extension (it is still good). However, you wouldn't be able to get 8th year extension.

Interesting twist in all of this is that if you use substitute labor and the priority date is more than 365 days you can get 7th year extension (nice little thing uscis did for us).

Hi UnitedNations,

If I want to discontinue my AOS and 485 and don't even want to appear for FP and decide to stay in my H1 and go back to my home country at the end of the H1 period do I need to fill up any form for GC cancellation?Any formaltities required

 

[dgarstang]

Is the original poster on a H1B visa? If they are, and they're I-140 is denied, then they are still in status.... on the H1B.

 

[smarthi]

united nations,

What do you mean by Priority Date for a labour approval?

Here's my situation:-

1. My H1-B 6 years ends on Jan 1, 2005.

2. My company filed for my 140/485/EAD/AP at Vermont based on a pre-approved labor (labor approved in Jan 2002) in June 2004.

3. I got my EAD approval on July 29, 2004.

Based on this can I apply for a 7th year H1-B extension.

Please help.

 

[smarthi]

Thank You so much United Nations.

My preapproved labour was applied sometime in March 2001. So I guess I can go ahead and file my H1-B 7th year extension.

Thanks once again, that's a huge relief.

 

[smarthi]

Thank You so much United Nations.

That sets everything in the right perspective.

You have been a great help.

 

[acc918]

I140/I485 denial

Hello UnitedNations.

My I140 was revoked in Mar 2004 because my previous employer sent letter to BCIS informing them that I no longer work for them. Because of this, all our I485 were denied including my wife and 2 kids. We filed Motion to Reopen on Apr 2004. I contacted congressman's office and they found-out from their contact in Newark NJ BCIS office that the MTR was heard and was approved May 2004 however up to know I have not received any notice for the approval. On June 2004, we rcvd a notice for me and my wife for FP in July 2004. My LUD changed 3 times a few days after FP was done. The online case status changed for me and my wife that reads:

On July 30 2004 the results of FP review has been received and processing has resumed on your case. We will mail you a notice if a decision is reached or additional informationis needed.

I'm confused now on what we should do. Does the message mean that they re-opened our case already? My lawyer is suggesting to file a lawsuit vs BCIS but it will cost a lot of money and I don't want BCIS to be mad at me and give me more hardtimes. Your opinion will be greatly appreciated.

 

[acc918]

What is your online status saying for 140? You will not get an approval notice for this application, only the attorney on record and employer receive 140 correspondence.

EAD/AP - what does the online status say

I can tell you that when my applications were denied there was no online update. However, once my 140 got approved, the status changed to approval. My EAD/AP were still showing as having received RFE. 485 had the same message from day 1. However, once 140 got approved, all my other applications status changed to "On April 27, 2004, this case was reopened on a BCIS motion, and the case is now in process. It is taking between 570 and 600 days for us to process this kind of case. We will mail you a decision as soon as processing is complete.

From what I gather it seems the biggest problem you have is knowing whether your applications were re-opened or approved.

1) what does the online status say for 140?
2) have you applied for EAD/AP since you were informed that BCIS re-opened your case - if you did, did they get approved?
3) What does customer service say?
4) Go to local uscis office and see what the status of your cases are?
5) File a freedom of information request on your 140/485 and you will see all the original applications, employer request to withdraw application, your response and the status of the application.

UnitedNations:

Thanks for your reply. To answer you questions, pls see below:
1) The on-line status for my I140 never changed. it still say "On March 2003, this case has been approved and a notice was mailed. If 14 days had passed blah, blah.

2) No I have not applied for EAD nor AP as my EAD will epire Apr 2005. I did not apply for AP because I don't have intention to travel out of US.

3) Did not call them yet. but accdg to Congressman's office, NCSC do not know the status.
4) Ok will try to do that.
5) I have all copied of the applications. The only thing i do not know is the status of the MTR. Do you think they will send the notice of any action for the MTR to the lawyer of previous employer?

Thanks again for your opinion.

 

[acc918]

I140/I485 denied. Filed MTR

There is another member "longgc", he had similar situtation as yours. Employer revoked 140 and this started a long journey for him. He just got his greencard approved recently. Try to look him up on these boards and seek his advice.

Unitednations:

Hello! Thanks for replying to my post. I just got an email message this morning from BCIS that all our I485s were transferred to LA office for interview. Can you give me your opinion on the ff:

1) Does this mean that my MTR is approved?
2) Do you know why they transferred to LA instead of Newark? I now reside
in NJ and filed AR11 and called NCSC to inform them of the change.
3) How long that it usually take to get interview notice?
4) While I am waiting, can I renew my EAD which is expiring on 4/2005?


Again. Thanks.

 

[atulh]

Just keep in mind that if you appeal you are not out of status. Once appeal is done then you gotta leave.

================

If on Appeal one is not our of status, the is he legal to work..???

 

[acc918]

If he has EAD yes. However, uscis is making renewal of EAD on denial/appeal cases very difficult to get. I'm pasting information from another thread.


Check this out -
http://www.twmlaw.com/resources/non...buyingtime.html

Look in the section "The Appeal of an Appeal".

.....Under a heading “INS Regulations Should Be Amended to State Explicitly That a Decision That is Appealable to the AAU Is Not Final Until the Right to Appeal Is Waived, or the Appeal or Certification Is Decided,” the General Counsel said that, “as long as a decision may be reversed on direct appeal or certification, the merits of the matter have not been finally determined and, therefore, the decision should not be acted upon as if it were final.”

That position is recognized elsewhere in INS regulations and procedures. For example, the standard language the INS uses in its denial notices states the following: “If you wish to file an appeal from this decision, you may do so. Your notice of appeal must be filed within 30 days from the date of this notice, 33 days if this notice was received by mail. If no appeal is filed within the time allowed, this decision is final.” This means that if an appeal is filed, the decision is not final. Moreover, adjustment applicants who file for employment authorization are entitled to renew their applications in one-year increments “including any period when an administrative appeal . . . is pending.” .....

Hello Unitenations. I'm happy to inform you that I just got the notices from bcis that our MTR has been approved. I also rcvd the notice that prelimanary processing of our cases have been completed and they were transferred to LA office to conduct interview. Since I am AC21 case, will the ins require me to show proof of my current company's ability to pay? I sent bcis all the information for my new job when i filed MTR together with my paystubs.

 

[interesttoknow]

My I140 was revoked in Mar 2004

acc918,
you said your previous employer revoked your I-140. Is this the employer who filed your LC and 140 or another previous employer? Please respond...

Hello UnitedNations.

My I140 was revoked in Mar 2004 because my previous employer sent letter to BCIS informing them that I no longer work for them. Because of this, all our I485 were denied including my wife and 2 kids. We filed Motion to Reopen on Apr 2004. I contacted congressman's office and they found-out from their contact in Newark NJ BCIS office that the MTR was heard and was approved May 2004 however up to know I have not received any notice for the approval. On June 2004, we rcvd a notice for me and my wife for FP in July 2004. My LUD changed 3 times a few days after FP was done. The online case status changed for me and my wife that reads:

On July 30 2004 the results of FP review has been received and processing has resumed on your case. We will mail you a notice if a decision is reached or additional informationis needed.

I'm confused now on what we should do. Does the message mean that they re-opened our case already? My lawyer is suggesting to file a lawsuit vs BCIS but it will cost a lot of money and I don't want BCIS to be mad at me and give me more hardtimes. Your opinion will be greatly appreciated.