• Hello Members, This forums is for DV lottery visas only. For other immigration related questions, please go to our forums home page, find the related forum and post it there.

Out of status after filing i485 - What happens ?

S

s6656

Registered Users (C)
My CN is 2014AS000019xx . Currently on L1 expiring on 31st Oct. Most likely I would be able to file my i485 in October when I am in Status. My question is if my L1 expires on 1st Nov 13 and if my interview is scheduled in Mar 14 (based on Boston processing time) , will i be disqualified from the DV?

My kids are in school here and I opted for AOS. My L1 cant be extended and I am hoping to get H1B1 (for Singapore) visa if i am going to be disqualified.

Thanks for advice
 
For DV cases you will have to be in status when USCIS adjudicate your application ( that is when they make a decision).
It doesnt matter when you will file your application (mail it in). what matters is when it will be adjudicated (for DV usually on the interview date). So the main concern is whether you are in status when its is being adjudicated not when its being filed.

DONOT compare adjustment of status based on marriage or asylum or anything else to DV cases. For example adjustment of status cases based on marriage can be approved even if the applicant is out of status. BUT those are different We are here about DV and the rule is you have to be in status when the application is being adjudicated (that is when the officer ask you in the interview if you are in status right there and then).

Whats the status of your kids? Are they US citizens? or are they dependents on your L visa??

If they are US citizens then they have no problem being here regardless of your visa status( yet you do have a problem because you are not a citizen and you have to hold a valid status)

If they are dependents on your visa, then as soon as your status is terminated they are being faced with the same because their residency here depends on you. Going to school is not permitted beyond that authorized stay which ends with your visa.

Unless you can extend your visa or switch to a different visa type then i think you will have to depart with your family and go for CP because AOS will not work without you and them being in full compliance with USCIS.

So to answer your Title question (Out of status after filing i485 - What happens ?)
It will simply be rejected or denied. After breaking the rules you dont get any privileges. Remember that DV is a privilege and not a right.



s6656 said:
My CN is 2014AS000019xx . Currently on L1 expiring on 31st Oct. Most likely I would be able to file my i485 in October when I am in Status. My question is if my L1 expires on 1st Nov 13 and if my interview is scheduled in Mar 14 (based on Boston processing time) , will i be disqualified from the DV?

My kids are in school here and I opted for AOS. My L1 cant be extended and I am hoping to get H1B1 (for Singapore) visa if i am going to be disqualified.

Thanks for advice
Click to expand...
 
Last edited by a moderator:
You're required to be in status as at the time of your interview for DV AOS. Since your L visa cannot be extended, you should still proceed with your plan to switch to H1, and if the H1 hasn't been approved as at the time of your interview, you can attend the interview with the H1 application acceptance receipt which you should have received.

Simply being able to send in your I-485 package before the expiration of your L visa simply wouldn't cut it.
 
Sm1smom said:
You're required to be in status as at the time of your interview for DV AOS. Since your L visa cannot be extended, you should still proceed with your plan to switch to H1, and if the H1 hasn't been approved as at the time of your interview, you can attend the interview with the H1 application acceptance receipt which you should have received.

Simply being able to send in your I-485 package before the expiration of your L visa simply wouldn't cut it.
Click to expand...

I don't think that plan will work. The H1B1 visa is NOT a dual intent visa and is subject to the H1B visa cap which is exhausted for this year.
 
The only reason why the plan wouldn't work is if the DV AOS is not successful. Other non dual intent visa holders such as F1, TN, TD, J, etc can apply for adjustment of status. The only caveat is the possibility of jeopardizing continuous H1B1 (or whatever other visa) status once an immigration intent is declared and the application is not successful.

britsimon said:
I don't think that plan will work. The H1B1 visa is NOT a dual intent visa and is subject to the H1B visa cap which is exhausted for this year.
Click to expand...
 
Sm1smom said:
The only reason why the plan wouldn't work is if the DV AOS is not successful. Other non dual intent visa holders such as F1, TN, TD, J, etc can apply for adjustment of status. The only caveat is the possibility of jeopardizing continuous H1B1 (or whatever other visa) status once an immigration intent is declared and the application is not successful.
Click to expand...


Sorry Sms1mom - I wasn't really clear. The dual intent thing may be a bit of a red herring EXCEPT if he has started the DV process already or starts it before he applies for the H1B1. I've assumed he has already started that because he said he has "opted" for AoS and has an AoS interview already scheduled.

However, the reason I said the plan is problematic is that the H1B cap means there are now no more H1Bs available until October 2014 (can be applied for April 1, 2014). Any application for an H1B1 (which is subject to the cap) would be rejected immediately UNLESS he can go to an employer that could sponsor an HI without being subject to the cap (such as a University). It sounds like he hasn't already started a H1B1 application so he would have to line up a job and apply, but that would be after he has declared his immigrant intent (if I have understood him correctly).

Am I still missing something?
 
britsimon said:
Sorry Sms1mom - I wasn't really clear. The dual intent thing may be a bit of a red herring EXCEPT if he has started the DV process already or starts it before he applies for the H1B1. I've assumed he has already started that because he said he has "opted" for AoS and has an AoS interview already scheduled.

However, the reason I said the plan is problematic is that the H1B cap means there are now no more H1Bs available until October 2014 (can be applied for April 1, 2014). Any application for an H1B1 (which is subject to the cap) would be rejected immediately UNLESS he can go to an employer that could sponsor an HI without being subject to the cap (such as a University). It sounds like he hasn't already started a H1B1 application so he would have to line up a job and apply, but that would be after he has declared his immigrant intent (if I have understood him correctly).

Am I still missing something?
Click to expand...

To make it simple:
1. I am on L1 until Oct 31 2013
2. I am selected for DV n my CN 2014AS000019xx
3. I have sent DSP 122 stating I will do a AOS
4. My number should be current in Oct, 2013 and I plan to file i485
5. My employer is going to apply for me H1B1 (which is still available for me) in mid Oct
6. Will I be violating the immigrant intent for the DV visa?
 
Last edited by a moderator:
The answer is simple. You must be in status at the time of your interview. Although your case number is current in October it is more likely that you'll be interviewed in November, may be December. Are you sure you'll get your H1B in October? Do you know, what is the processing time for H1B? If you get it in October, then I don't see any problem. Anybody else input?

s6656 said:
To make it simple:
1. I am on L1 until Oct 2013.is
2. I am selected for DV n my CN 2014AS000019xx
3. I have sent DSP 122 stating I will do a AOS
4. My number should be current in Oct, 2013 and I plan to file i485
5. My employer is going to apply for me H1B1 (which is still available for me) in mid Oct
6. Will I be violating the immigrant intent for the DV visa?
Click to expand...
 
s6656 said:
To make it simple:
1. I am on L1 until Oct 31 2013
2. I am selected for DV n my CN 2014AS000019xx
3. I have sent DSP 122 stating I will do a AOS
4. My number should be current in Oct, 2013 and I plan to file i485
5. My employer is going to apply for me H1B1 (which is still available for me) in mid Oct
6. Will I be violating the immigrant intent for the DV visa?
Click to expand...

So - you have already declared immigrant intent which is a problem for the H1B1 application. I believe that is a problem - but others may know better.

Assuming you don't think the immigrant intent is an issue and your H1B1 were to be submitted, processing time can be reduced to 15 days by selecting premium processing. However you need to have achieve LCA approval prior to submitting the I129 so that adds about 2 weeks.
 
This is what I found. Yes it is a problem.

Unlike H1B and L visas, H1B1 visas are not considered dual intent visas. Therefore, a person in H1B1 status, who files for permanent residence (commonly referred to as a "green card") may endanger his/her continued H1B1 status.

britsimon said:
So - you have already declared immigrant intent which is a problem for the H1B1 application. I believe that is a problem - but others may know better.

Assuming you don't think the immigrant intent is an issue and your H1B1 were to be submitted, processing time can be reduced to 15 days by selecting premium processing. However you need to have achieve LCA approval prior to submitting the I129 so that adds about 2 weeks.
Click to expand...
 
scusyxx said:
This is what I found. Yes it is a problem.

Unlike H1B and L visas, H1B1 visas are not considered dual intent visas. Therefore, a person in H1B1 status, who files for permanent residence (commonly referred to as a "green card") may endanger his/her continued H1B1 status.
Click to expand...

Does this apply to DV visa ? I was told - In general, applying for DV is not considered showing immigration intent, due to the nature being a lottery.

I am going to speak to my company lawyer about this.
 
s6656 said:
Does this apply to DV visa ? I was told - In general, applying for DV is not considered showing immigration intent, due to the nature being a lottery.

I am going to speak to my company lawyer about this.
Click to expand...

Entering in the DV lottery is NOT considered showing immigration intent. However submitting your 122 and 230 forms to KCC once you have been selected IS considered to be showing immigration intent.
 
s6656,

Yes, sending in DSP-122 constitues a declaration of immigration intent. However, at this stage, I still don't think your situation makes it completely impossible for a successful AOS. Yes, speak with your company lawyer, that is what you should have actually done in the first place before sending in your DSP form. Just don't send in your I-485 until your status issue is resolved, and do remember a lot of inmigration lawyers have no idea when it comes to DV processing. Just get the company lawyer to consentrate on getting your visa issue resolved.
 
Thanks for all the reply.

After discussing with my company, I am going to file for L1A extension for 1 year.
 
Sm1smom said:
You're required to be in status as at the time of your interview for DV AOS. .......
Click to expand...

NO!
You need to be in status only as of the day of you sign your i-485 (there are exceptions to that too)
You will be in an interim LAWFUL status till i-485 is adjudicated.

Talk to a lawyer, that's my best advise. But above is what I know.

Best!

PS:
If after filing i485 your current 'work authorzn' (visa or visa conditions like i-20 or EAD) expires then you should NOT work until you get your i-485 based ead. If your visa/ead is expiring during i-485, it is very advisable to file for AP and EAD benefit concurrently with your i-485. (or, if you can, just wait till i-485 is approved/stamped on PP)
 
Last edited by a moderator:
NuvF said:
NO!
PS:
If after filing i485 your current 'work authorzn' (visa or visa conditions like i-20 or EAD) expires then you should NOT work until you get your i-485 based ead. If your visa/ead is expiring during i-485, it is very advisable to file for AP and EAD benefit concurrently with your i-485. (or, if you can, just wait till i-485 is approved/stamped on PP)
Click to expand...

Currently I am on L1A which expires on 31st Oct. I believe I can file i485 on 1st Oct. (based on my CN history)The change of extension is 50/50 as the project is almost 80% done. My company is planning to file extension mid Oct without premium service and also expecting to receive RFE . It make

If i485 need to be in status only as of the day of I sign will be great. Will talk to my lawyer.

Thanks
.
 
Just checked with company lawyer. She confirmed when I file my i485, i must be in status.

If my status expires after that, my new status will be pending i485 status. Not required to be in status during actual interview only when filing i485.
 
I want to comment on another aspect of your original post.

I read somewhere on this site, and it makes sense, that the I-485 processing time for DV cases is a lot shorter than other cases, e.g. employment-based, family-based, etc. I don't think you would have to assume an interview date in March just because your FO processing time shows long waiting periods. DV cases are at the peril of losing their visa numbers because of the 1-year time span that all DV cases will have to be processed.

I would predict your interview to be sometime in December and you to have GC in hand (assuming no AP) in January.

Other people are welcome to correct me.
 
You must log in or register to reply here.
Top