Out of status (Filed I-485 within OPT period) ?

J

john_imm

Registered Users (C)
Update on the case attached-Out of status (Filed I-485 within OPT period) ?

I was a F1 student and had an OPT valid from Dec. 2001 to Dec. 2002. My I-485 petition (through my wife) was filed in July 2002. I received a RFE saying that I was out of status for more than 180 days and need file an I-485 Supplement A with $1000 fine. My attorney said the only thing that might cause the RFE was that I did not work during my OPT time from Dec. 2002 to July 2002. If I could prove I was working during the period, then there was a case and we could appeal the RFE. Otherwise it was better just go ahead to pay the fine and file I-485A. I argued with her that I was on OPT and it should not be counted as "Out of Status" even I was not working. But she said the law about OPT was vague and she could not say for sure that USCIS would accept the argument. The risk of getting deny was high if we went to appeal based on my argument. When I asked why she did not catch the issue before to file the petition, she said if she had found it, we would have filed I-485 and I-485A with fine together. So there was no much difference in terms of money.

Then I have a few questions I want to hear your opinion:

1. Do I have a case to appeal the RFE?
2. Does my attorney have any responsibility for not catching the issue prior to file my I-485? I paid her $1000+ for handling my case. I think I would have had more options if she caught the issue then.
3. I am willing to pay the fine to get over with the nightmare of this long waiting and wondering. But will it have any negative consequence if I file I-485A?

Thanks in advance.
 
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If the labor/I-140 of the primany applicant was filed before the sun sat of section 245(i), you are fine, just pay $1000 and get the hell out of there. If I were you I would have gladly paid $1000 and get out of this loop asap.



john_imm said:
I was a F1 student and had an OPT valid from Dec. 2001 to Dec. 2002. My I-485 petition (through my wife) was filed in July 2002. I received a RFE saying that I was out of status for more than 180 days and need file an I-485 Supplement A with $1000 fine. My attorney said the only thing that might cause the RFE was that I did not work during my OPT time from Dec. 2002 to July 2002. If I could prove I was working during the period, then there was a case and we could appeal the RFE. Otherwise it was better just go ahead to pay the fine and file I-485A. I argued with her that I was on OPT and it should not be counted as "Out of Status" even I was not working. But she said the law about OPT was vague and she could not say for sure that USCIS would accept the argument. The risk of getting deny was high if we went to appeal based on my argument. When I asked why she did not catch the issue before to file the petition, she said if she had found it, we would have filed I-485 and I-485A with fine together. So there was no much difference in terms of money.

Then I have a few questions I want to hear your opinion:

1. Do I have a case to appeal the RFE?
2. Does my attorney have any responsibility for not catching the issue prior to file my I-485? I paid her $1000+ for handling my case. I think I would have had more options if she caught the issue then.
3. I am willing to pay the fine to get over with the nightmare of this long waiting and wondering. But will it have any negative consequence if I file I-485A?

Thanks in advance.
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My 2cents

You do not have to be working for pay. You can have a proof of practical training (Letter from any company) but with out pay.
But if you can pay the fine and get it over with. Better thing to do. Rather than screwing your own mind at the mercy of BCIS' processing capabilities. If you do not pay that fine and try to answer RFEs etc, you will still pay the money. But to the lawyer
:D :D
 
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If I were you, I would appeal the RFE. You followed the rules accordingly and did nothing wrong. I guess USCIS lost your OPT record or the officer didn't find it, so they got a conclusion you were out of status. You can simply write a letter with some copies of OPT. I think you can get it done by yourself. Paying fine implies you admit something you didn't do.
 
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This is interesting, I had absolutely no clue that you couldn't 'not' work on OPT! I thought that having OPT implies that you are in status and there is no call to actually have a job. Well I guess you live and learn. There were tons of people from my old university who will face the same problem if INS decides to make it stick. These guys were looking for jobs for MONTHS!

I am also surprised that INS found out. But regardless, I would pay the fine and get on with life if I were you. As far as catching the lawyer, I would advise you to let it go. Not worth the hassle, the lawyer will just turn around and say you din't inform her. If you feel so strongly, then you could always change lawyers.
 
Rule 1 : one should not fight where it does not much make sense or where the cons far outweight pros, even if you think you are right about it.

What if INS doesn't agree with him? he will be handed over a "notice of denial" and will be asked to leave the country asap and don't return for next 10 years. Is that what you want him to go through?

I don't have much knowledge of OPT rules but I think OPT does not entitile you to stay in this country for pleasure. You have to be in training some place. And he said he didn't have any record of any training. So.....

This is my final say...go with what your lawyer says.

wittAAAA said:
If I were you, I would appeal the RFE. You followed the rules accordingly and didn't nothing wrong. I guess USCIS lost your OPT record or the officer didn;t find it, so they got a conclusion you were out of status. You can simply write a letter with some copies of OPT. I think you can get it done by yourself. Paying fine implies you admit something you didn't do.
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On a related note .... Does F1 ( Student ) visa allow for dual-intent ?
I know H1 allows dual-intent.

If F1 does not allow it, how come someone can file 485 while still being on F1 ( I think OPT requires the underlying F1 to be valid - right?)

Thanks !
 
Thanks all for replying. I forgot one detail that the RFE did not state that I was out of status. It says I should file I-485A and show the receipt if I have been out of status, or prove it if I have been in status all the time. But my attorney interprete it as I was out status during OPT time after she reviewed my files. Here is the original RFE:

Submit the following in order to complete your Application for Adjustment to Permanent Residence:

Penalty: If at any time after November 1986 you have been in the US without lawful immigration authorization, or have worked in the US without USCIS authorization, for a consecutive period of more than 180 days you must file Form I-485, Supplement A and pay the $1000 penalty. The burden is upon you to establish any current and past lawful immigration status or work authorization. If you have already paid the penalty, submit a copy of the receipt to verify such payment.
 
I would suggest Pay the fine and be happy rather than waiting for long time to get approved.

But do consult a real good lawyer
 
Better seek a 2nd opinion first. This RFE is confusing. Pay hourly fee to have another good lawyer review your case and this RFE. It he agrees with your lawyer, then you gotta pay the fee, man.

Or at least ask your lawyer to call CSC to clarify this particular point, since CSC do have phone number just for lawyers.

Any negative consequences after paying the fine? None that I know of. Although I do remember seeing an advice on some lawyer's website, saying that if you leave a written consent to violating the immigration law on file, it could come back to bite you unexpectedly someday.

I guess that means if you decide to run for congress or the governer of CA in the future, your opponent could dig up this dirt on you and sink you. :)
 
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john_imm,

I still think your case is simple. USCIS just lost some track of you, and cannot decide whether you were out of status, and even you were, they are ready to forgive you. (Your in/out of America record may not be clear; you might come to this country before Nov 1986.)

If your attorney is right, the topic would be hot among immigration lawyers. You can try to contact Mr. Rajiv for his opinion.

witt
 
Ah now the plot becomes clear. I was under the impression that INS has held you as out of status.

As far as I know OPT actually gives you the right to stay back in this country to work, but obviously you can't work without getting a job. So it is very feasable to take time to look for a job and be unemployed while you are at it.

In my opinion you have definitely not been out of status. My advice to you would be to get a second opinion ASAP. Secondly, I would advice you to change your lawyer, since your current one seems to suck. The reasoning behind going for the second opinion is that you don't want to show you were out of status if legally you weren't. By filing I-485 Supplement A you are actually giving up your rights and pleading guilty. Something you should NEVER do. Besides if you actually don't have to pay the fine, you will be saving money by taking a simple consultation which might run up to 200 $ or so.

Good luck.

max2k1,

F1 does not allow dual intent, but here john_imm was not trying to remain on F1 and as an adjustee at the same time, so his position is valid.
 
140_takes_4ever said:
max2k1,

F1 does not allow dual intent, but here john_imm was not trying to remain on F1 and as an adjustee at the same time, so his position is valid.
Click to expand...

Cool - just read the part that his wife is the primary applicant in 485.

So, you can't really apply for AOS from F1/OPT - right ? You need H1 or your spouse would need to apply as the primary - Is my understanding correct ?
 
Update on this case

Thanks for all the kind people who gave me advice on this forum. I now have some important update to share with you guys.

I received an RFE from INS the end of July asking me to provide evidence that I was legally present in the US. My attorney thought I was out of status because I did not have a job during OPT. He was the one speciallized in OPT area in that immigration law office, and he suggested me to pay the $1000 fine. Although my experience told me that I was not out of status if I did not have a job during OPT, in fact, my school's international office staff sounds more responsible and knowledgeable than that "attorney". My spouse later spotted that my previous attorney (was on maternity leave at the time, so this guy took over) put my occupation at the time of my I-485 filing as "Homemaker" despite of the fact that I was a student during OPT. We actually questioned that attorney why she put "homemaker" there, she insisted it will do us no harm since I will adjust my status to I-485 pending.
My spouse asked the attorney if the RPF might have something to do with "homemaker" status under F-1 visa, they said it might not be the best word to use, but it won't change anything. We asked them to correct it, they sent out a declaration on my behalf, saying it was a mistake, I was a student during OPT, not a homemaker.

Today, the INS approved my case. Looking it back, I cannot believe my attorney gave me so many false advice and I almost fell to it and paid the fine for something I did not commit.

Again, I thank all the people here on this forum that share your experience and I hope other people do not pay and hire a reckless lawyer.
 
Good news, john_imm, congratulations. Glad to hear you stuck it out.

I can relate - I had an attorney who was not totally attentive to details, too, and had led to a Notice of Intent to Deny on my i140. I ended up paying a different attorney almost $4,000 ($300 an hour) to deal with CIS. He turned out to be an excellent attorney, and was able to put up a successful defense, and my i140 got approved.

Freeviews
wac-0303xxx, 11/2002
no 2nd FP yet
 
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