Out of Status, I-94 questions for 485 processing

[PaulK]

Memo's are written to explain laws.The law for example doesn't clarify for example if my wife was out of status.It cleary states that she would have been out of status if her COS was denied.,however her COS was aproved.
Pritty strong arguments can be made based on Memos.

 

[akatu]

PaulK

This is correct intermpretation. USCIS just cannot apply double standards to COS vs AOS. You were good for COS bud bad for AOS. It does not make sence. You could have been denied according to Cook memo but scince it did not happend, they should respect their own decisions, and BTW memos too.
they always can ague ; memo not binding, but this is their own instruction how to apply the law. Now: a law is binding. by the law COS can be granted only if a person continue to maintain his/her previous nonimmigrant status unless such a failure can be excused by service

“8 CFR PART 248 -- CHANGE OF NONIMMIGRANT CLASSIFICATION


Sec. 248.1 Eligibility.

(a) General. Except for those classes enumerated in § 248.2, any alien lawfully admitted to the United States as a nonimmigrant, including an alien who acquired such status pursuant to section 247 of the Act, who is continuing to maintain his or her nonimmigrant status, may apply to have his or her nonimmigrant classification changed to any nonimmigrant classification other than that of a spouse or fiance(e), or the child of such alien, under section 101(a)(15)(K) of the Act, or as an alien in transit under section 101(a)(15)(C) of the Act. An alien defined by section 101(a)(15)(V) of the Act may be accorded nonimmigrant status in the United States by following the procedures set forth in § 214.15(f) of this chapter. (Amended 9/7/01; 66 FR 46697) (Amended 8/14/01; 66 FR 42587)

(b) Timely filing and maintenance of status. Except in the case of an alien applying to obtain V nonimmigrant status in the United States under § 214.15(f) of this chapter, a change of status may not be approved for an alien who failed to maintain the previously accorded status or whose status expired before the application or petition was filed, except that failure to file before the period of previously authorized status expired may be excused in the discretion of the Service, and without separate application, where it is demonstrated at the time of filing that:
(Introductory text revised 9/7/01; 66 FR 46697)

(1) The failure to file a timely application was due to extraordinary circumstances beyond the control of the applicant or petitioner, and the Service finds the delay commensurate with the circumstances;

(2) The alien has not otherwise violated his or her nonimmigrant status;

(3) The alien remains a bona fide nonimmigrant; and

(4) The alien is not the subject of removal proceedings under 8 CFR part 240. (Revised effective 4/1/97; 62 FR 10312)

(f) Approval of application. If the application is granted, the applicant shall be notified of the decision and granted a new period of time to remain in the United States without the requirement of filing a separate application and paying a separate fee for an extension of stay."

Thus you were already "excused" why they took this excuse back?

 

[felix31]

should i hope or should I give up?

dear all,

I have a question for anyone who has been in similar situation...

what options a person on H4 has if H4 visa and I-94 expired for more than 180 days?

But, we filed H4 transfer explaining what circumstances prevented our timely filing and H4 was approved with new I-94 and new dates.

Till present date two more H4 transfers were filed and approved with corresponding I-94 dates. So at this time everything seems to be fine (well, seems)..

I am ready to totally give up and move to Canada and forget about getting GC because of that fatal gap in I-94. My hubby constantly argues that if my H4 was approved than I am in status.

Is there any hope?

 

[TheRealCanadian]

I am ready to totally give up and move to Canada and forget about getting GC because of that fatal gap in I-94. My hubby constantly argues that if my H4 was approved than I am in status.

If there is no break in the I-94s then you are fine.

 

[tooSAD]

previous out of status

Hi HoneyArjun
I have also had past immigration student status problem which was over six month. My thread is somewhere burried here. My login name reflects how I felt. Anyway, like Tammy2 said if you could leave the country and came back before apply I-485. I beleive that will solve everything. Is it still possibe for you ?.

Does COS cures the previous violation of status ? This was the main question I asked many lawyers. To sum the answers I got from these lawyers at best I can say, this is fuzzy area and too much riding on this..... I agree one's COS shouldn't have been approved with I-94 when he/she is not maitaining current non-imm status. Normally he or she is asked to come back with new I-94. That gives a clean slate.Now is there going to be a question on this during your GC process. Is there anything that raise a flag? Was this(violation of status) mentioned on I-539 form when you changed from h1->h4?. I think The adjudicator might see, there was a mistake made, or could interpret it as it was under the discretionary of Imm officer to approve the COS with attached i-94 regardless and nor bother with it. But if they want to make an issue on this, they can that's what i understad from these lawyers. In this situation, lawyers( I meant good lawyer unlike )working on behalf of the client suggest to leave the country and come back before applying I-485 since there is no bar to anything ...

and I would suggest find a laywer who you can trust, who understand your situation, layout everything on the table. See what he/she thinks. Talk to few lawyers and go with confident one. If your lawyers think he/she doen't think there is going to be a prblem becase COS was approve and is very confident about this. You are in good hand. The same law can be interpreted very differently, this is what I have noticed,
One good thing though, you are eligble for GC via CP. And also could you look into reducing the unfamous 180 days, since you are only few days over, just incase. Or You might not get any rfe's, Since you have applied as a dependent and hopefully they dont' scrutnize it. I hope/pray this is the case. Hope is a positve thing......

 

[felix31]

thanks realcanadian


here are all H4 dates
1. my first I-94 - valid till May 9, 2001
(hubby's H1 transfer filed and approved in jan 2001 - his next H1 transfer filed and approved in oct 2002)
2. my H4 extension application filed on May 8, 2003 showing extraordinary circumstances...etc (will spare you the details)

and approved with new I-94 for dates Oct 2002-Oct 2005

3. new H4 transfer with I-94 dates - Jan 2004-Mar 2006

4. new H4 transfer & I-94 valid Jan 2005 - March 2006
5. new H4 transfer & I-94 valid March 2005-march 2006


the I-94 gap is between may 2001 and oct 2002

I did my best to read on this issue as much as possible...
with the retrogression - we cannot even file I-485 in the next 5-6 years..

 

[Salimj]

was i out od status

Let me Give you the Break Down
------------------------------ :
Entered Usa on Jan 20th 2001
POE gave me I-94 Till 20th April 2001 (3 Months)
Applied for Extension for B1/B2 on April 12th 2001
Received Notice Date dated April 19th 2001 (But never got An approval on that)
Applied for L1-A in Sep.., Receipt Date is Sep 10th 2001 (so that’s 143 Days From Previous I-94)
But Got Approved on my L1-A on October 31 2001 (so that’s 194 Days)

So guys am i OK....

 

[PaulK]

You will probably be in the same situation as my wife(please see my previous posts).

 

[akatu]

To Rajiv KHANNA

Beacause there are so many cases with this type of "out of status" and as seen from above posted link Mr.KHANNA office has already settled in the Federal court some of them, oud it be possibe if Mr.KHANNA write a letter to CIS director to ask to shed some light on this issue. Appearently they should not apply differen standards to E/S-COS and AOS. All these folks were good for E/S-COS b/s they pay taxes on their temporary jobs, but when it comes to AOS they become unwanted in this country.

 

[tammy2]

POE gave me I-94 Till 20th April 2001 (3 Months)
Applied for Extension for B1/B2 on April 12th 2001
Received Notice Date dated April 19th 2001 (But never got An approval on that)

What does status says? Check it might have been approved Later. Other wise they should have denied you L1 visa later.

 

[ts1234]

I think the law does not understand that you were on bench or out of project etc. You got an appointment letter from your old company and you joined that. They are supposed to pay you wages from the date of joining (as committed in LCA by them). Salary slips are one way to prove that you were on payroll. Ask him to pay up (If he has in some cash situtaion, you can invest in his company at least to cover tax liabilities for some nominal shares which can be baought back by after certain period) as back wages for those periods. This arrangement does not affect your employer in any way but you have a lot to gain. You are no longer out of status since law cannot force one to "work" in a company only your boss can do that. You join a company and they do not give you work and do not pay. Is it your fault?

 

[dabuk]

Hi HoneyArjun,

My wife's case is also slightly similar. Entered on H4 (Dec 2003), H1 filed on Oct 2004, started working in April 2005 and has been working ever since. Filed I-140/AOS in Sept 2005.

I had told my lawyers that she did not work from Oct to Apr, and the reason provided was that she did not have an SSN upto February, and consequently found a consulting position in April. They have included that as a separate note on her AOS application.

Also, the ony point of denial (180 day rule) is during re-entry with AP. If you never leave the country, the rule will never be triggered. If you re-enter using a non-immigrant visa, the rule will not be triggered either.

Basically, the thing is this

(a) You're not on H1 the day your company decides to fire you, or the day you file a COS.

(b) If they "bench" you, they're doing something illegal for which you can report them to the Dept of Labor. They can however, play around with the start dates. You will have problems getting your visa approved in these cases, since obviously the employer doesn't seem to have the ability to pay.

(c) Yes, you are out of status, but that isn't equivalent to being in illegal status. Illegal status for 99% of Indians derives from the validity of I-94 (unless you crossed over the border undetected). You always had a valid I-94, so don't worry.

My question to the group; Can one file a change of non-immigrant status when AOS is pending? What happens when the derivative spouse is laid off? I'm slightly afraid for my wife to travel on AP, you never know how USCIS interprets these sort of things, am planning for her to get a dependent H4 visa and re-enter....have run this by my lawyer and am waiting on her response. Will post on what she has to say.

Cheers,
dabuk

 

[TheRealCanadian]

Can one file a change of non-immigrant status when AOS is pending?

I don't see why not.

What happens when the derivative spouse is laid off? I'm slightly afraid for my wife to travel on AP, you never know how USCIS interprets these sort of things, am planning for her to get a dependent H4 visa and re-enter

If a derivative spouse is laid off and an I-485 is filed, then nothing happens. If she is ineligible for entry on AP (due to the 3/10 year bars) then an H-4 will be just as useless as AP. If she is not subject to the re-entry bars, then she can get in just fine with AP.

I don't see the worry. The 3/10 year bars are entirely non-discretionary and there is exactly zero room for interpretation. Either you were illegally present for 180 days or more, or not.

 

[dabuk]

Hi RealCanadian,

I guess then the most obvious question is what constitutes illegal presence.
In my wife's situation would the time period from oct 1 2004 to April 4 2005 be considered illegal presence?

Obviously, one cannot start working without SSN. And SSN authorities will not accept an application for SSN until the indicated start date on H1. Processing times for SSN in california is ~ 3 months. Would that be counted against the individual? It would be a huge travesty if that were so.

My hunch is illegal presence implies overstaying your I-94, or when laid off. Not being paid while the employer maintains your H1 should not be counted as accruing illegal presence for the employee.

As far as the 3yr/10yr rule is concerned, I don't think it gets triggered when one tries to enter on a non-immigrant visa. The immigration officials look at your records carefully when one tries to enter using AP.

 

[TheRealCanadian]

I guess then the most obvious question is what constitutes illegal presence. In my wife's situation would the time period from oct 1 2004 to April 4 2005 be considered illegal presence?

Did she overstay her I-94, or receive a written notice from USCIS that her H-1 was canceled? If not, then no.

Obviously, one cannot start working without SSN. And SSN authorities will not accept an application for SSN until the indicated start date on H1. Processing times for SSN in california is ~ 3 months. Would that be counted against the individual? It would be a huge travesty if that were so.

There is no law whatsoever that requires one to have an SSN before work starts. I didn't have one when I started by job. The IRS clearly states that the employer need only withold at the highest rate.

Not being paid while the employer maintains your H1 should not be counted as accruing illegal presence for the employee.

No, but it does count as "out of status" towards 245k relief.

As far as the 3yr/10yr rule is concerned, I don't think it gets triggered when one tries to enter on a non-immigrant visa. The immigration officials look at your records carefully when one tries to enter using AP.

How you attempt to enter (AP, non-immigrant visa or immigrant visa) is irrelevant. Why do you think people who are subject to the re-entry bars cannot use Consular Processing?

 

[Participant]

No, but it does count as "out of status" towards 245k relief.



QUOTE]
generally a person (admitted) or on H1B status and with out 'serving the employer'as per the terms laid is termed as violated the status--(out of status).(for the conditions of 'outof status' ,violated status-situation refer to faqs on h1 at uscis.com)
if the period is more than 180 days 245K is not applicable(and 245i is not applicable aswell if immigration visa/AOS is not filed before a certain date ie.This program ended April 2001).
245K section takes care only when 'illegal presence' or 'unauthorized work'
or 'vilolated status' is less than 180 days.

Also,further per CIS view of out of status(just referring for info' and not for 245i here) :
NOTE: There are some groups that may not need to use section 245(i).
**Certain persons who are eligible for certain employment-based immigrant visas and who were inspected and lawfully admitted to the United States, but have not violated their status or worked without permission for more than 180 days, do not have to apply for adjustment of status under section 245(i). They may be able to use section 245(k). **
This also applies on one who:
'Entered the U.S. without being inspected by an Immigration official.

Stayed in the U.S. longer than allowed by Immigration.

Entered the U.S. as a worker on an aircraft or ship (crewman).

Entered the U.S. as a “Transit Without Visa.”

Failed to continuously maintain a lawful status since your entry into the US.

Worked in the U.S. without Immigration permission.

Entered as an “S” nonimmigrant (relates to witnesses about criminal or terrorism matters).

**Are seeking a work-related visa and are out of status at the time of filing the application to adjust status (Form I-485).**

Worked in the U.S. while being an “unauthorized alien.” '.
link:http://uscis.gov/graphics/howdoi/hdi245i.htm.
Reg---
"dabuk
Registered User Join Date: Oct 2005
Posts: 25

Hi HoneyArjun,

My wife's case is also slightly similar. Entered on H4 (Dec 2003), H1 filed on Oct 2004, started working in April 2005 and has been working ever since. Filed I-140/AOS in Sept 2005 "

But in OPs case,not sure,it is little grey area about 'out of status' since--
She is on h4 and then COS to h1 but the starting(?) on h1 was only after 6 months (oct-mar) and siince it is not an 'breach' is not in the middile or at end of h1 tenure before filing AOS(as such it may be interpreted she has was on h4 till mar. and 'started' h1 from apr only?).An attorney may be able to clear this whether she could be construed -not out of status at all before filing AOS,for example(chances may be there) .
But the period in question if it is more than 180 days and if found in the reocrds of CIS--the bar upon reentry may be/ may not be attracted and how
CBP officer reacts to this is little tricky and good attorney may be able to tell this.

 

[dabuk]

Hi RealCanadian & Participant,

Thanks so much for your responses.

Did she overstay her I-94, or receive a written notice from USCIS that her H-1 was canceled? If not, then no.
No, she received no such notice. She went on payroll in April, and has been on payroll ever since.




There is no law whatsoever that requires one to have an SSN before work starts. I didn't have one when I started by job. The IRS clearly states that the employer need only withold at the highest rate.

Most of the times the employers want to do background checks before allowing anyone to start working for them. This isn't possible without an SSN. So, nearly every company that insists on individuals having an SSN before they can hire the person will have a problem.


No, but it does count as "out of status" towards 245k relief.

Thanks a lot for pointing this rule out...I think she would be out of status for 185 days, hence ineligible then?
BTW my attorneys have indicated this on her AOS petition, and now I'm a bit worried....

 

[Participant]

Hi RealCanadian & Participant,

Thanks a lot for pointing this rule out...I think she would be out of status for 185 days, hence ineligible then?
BTW my attorneys have indicated this on her AOS petition, and now I'm a bit worried....

I repeat that the 3 year bar question arises only when the person leaves and renters US at any POE while on AP/h1/H4 and in only case is she construed above 245k period stipulation by an CIS-CBP officer and if records are available to them.
But as I mentioned earlier above,the question of whether she is out of status at all for AOS purpose --may be argued differently in the way as in my above reply but the possibilities have to be ascertained from an good attorney and better to be prepared before hand for
any future eventuality/query from CIS--only the in the condition if you believe that 'grey area' period exceeds 180 days.

 

[TheRealCanadian]

No, she received no such notice. She went on payroll in April, and has been on payroll ever since.

Then she's no subject to the re-entry bars. That's good, and it means that she can safely travel abroad and re-enter, using either an AP or H-4.

Most of the times the employers want to do background checks before allowing anyone to start working for them. This isn't possible without an SSN. So, nearly every company that insists on individuals having an SSN before they can hire the person will have a problem.

But that's the employer causing the problem, not US immigration law. Besides, it boggles the mind that an employer would be willing to pay several thousand dollars in filing and legal fees to get an H-1 and then let the employee sit for several months on a background check that won't return anything because the SSN was just issued.

Thanks a lot for pointing this rule out...I think she would be out of status for 185 days, hence ineligible then? BTW my attorneys have indicated this on her AOS petition, and now I'm a bit worried....

I'd be worried too. Are these attorneys on drugs, or merely incompetent?

 

[Honeyarjun]

Dabuk, I am in a very similar situation as of your wife. If you have read my other posts in this thread you would have noticed that I am also not qualified for 245i (PD is not before apr 2001 and not physically present is US in Dec 2000) as well as 245k (183 days in my case).

I recently visited my home country and came back on my old H4 itself and didnt use the AP. I havent got the new H4 stamped in my passport . Before leaving I emailed US embassy and I was told my old H4 is enough to come back and no need to get a new stamping. If your wife is working now , then she needs to get her H1 stamped in her passport (either from your home country or from canada/mexico etc) supposing she wants to travel and maintain non immigrant status. I dont foresee any problem in using AP either.

The real problem would arise in the final stage of 485 processing if the USCIS officer looks deep into the files for status problems. They would send RFE requesting for proof of status. I am keeping my fingers crossed . I hope your wife would not have any problems too. Keep us updated.