Out of status ... 245(k)

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prashant_jain

Registered Users (C)
I would like to explain my situation first ...
I was laid off from my previous company called COMP1 in Oct-2001. At that time I had a valid H1B visa and a valid I-94 (visa and I-94 valid till Oct-2003). After 155 days (in Mar-2002) I joined another company called COMP2. Technically I was out of status (OOS) for these 155 days. Note: The new company sponsored my H1 (it was not a transfer of H1 due to my OOS issue. It was a fresh sponsor of H1B and I had to go to Vancouver and get the visa stamped). I dont know if COMP1 informed INS of my laid off status (and get my H1B cancelled) or not.

COMP2 sponsored my labor and I am expecting it any time soon. My company attorney says that I will have to go for consular processing and the reason being that I was OOS. 245(i) would have helped me. 245(i) says that a OOS candidate can pay a penalty of $1000 and apply for I-485 (instead of doing consular processing). Some date restrictions have been put on 245(i) and that rule dosent help me anymore. I found that 245(k) is somewhat similar to 245(i) and that rule can help me file for I-485.

1. Has anyone ever used the 245(k) before?
2. Is my understanding correct that I can use the 245(k) rule to file for I-485 though I have been OOS (technically speaking).
3. Any comments?
 
prashant_jain said:
2. Is my understanding correct that I can use the 245(k) rule to file for I-485 though I have been OOS (technically speaking).
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If you have been out of status for 180 days or less (as it appears) 245k relief is available to you automatically. File the I-485, and say nothing. Make sure you can document your layoff date and your re-entry after your consular interview in Vancouver and ensure that you can prove that there is less than 180 days difference in the dates. You'll be fine.
 
If you went out of US after being out of status and then came back to US. And you have been in status since your last entry. You don't have any problems filing I-485. The status questions are just for the time period since your last entry into US.

Can you please answer a couple of my questions. Are you an Indian citizen? Did you have any problems stamping in Canada?
 
Thanks for the reply everybody.

nandpc,
I am a indian citizen and I had one issue in vancouver (Mar-2002). My appointment letter stated that if I have been out of status then I should go back to the country of my origin. I took a chance. I went there and I was lucky. The interviewer was in a very bad mood. She asked me to show her my pay stubs. My last pay stub was 150 days old. She would have known that I was oos. I replied, "I dont have any pay stub because I have not joined the new company yet. I will join them once you approve my H1 visa"... technically correct answer. She agreed and approved my visa. I had gone to vancouver with my family. Any rejection would have meant going back to India
 
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Per my understanding, if you have not overstayed your I-94 AND if there is no INS or IJ determination that you have violated your status, she cannot send you to India for visa application. That was why you got your visa even though you had been technically out of status for 150 days.
 
You can use 245(k) for AOS. Since your last inspected entry into US, you have been in status. Also, you never overstayed (unlawfully present). You were just out of status. That qualifies you for 245(k). The terms of 245(k) states that you can use it if you were not out of status for more than 180 days since your last inspected entry without ever being unlawfully present.
 
imwatcher123 said:
Per my understanding, if you have not overstayed your I-94 AND if there is no INS or IJ determination that you have violated your status, she cannot send you to India for visa application. That was why you got your visa even though you had been technically out of status for 150 days.
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The only time the INS/IJ determination of out of status comes into picture is for counting unlawful presence time. Once INS determines you are out of status, your clock starts ticking for unlawful presence test. If you don't depart within 6 months, you are toast for 3 years. There is an exception for people who are admitted for "D/S" (duration of status). For eg, if a F1 student starts working illegally, he/she is not automatically out of status unless INS/IJ makes that determination (if laws have changed recently, I don't know ). As for applying for visa as a TCN, I have read that many people are asked to apply for visa in their consular district if there are any problems with status or prior stays or the consulate is not familiar with local customs of the applicant.
 
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