Out of Status, I-94 questions for 485 processing

Hi HoneyArjun,

<b>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.</b>

Well, I really hope that there are no problems. Unfortunately, my attorney, being overzealous, thought it fit to attach a note that my wife was not working from the period from oct 2004 - mar 2005 due to non-availability of SSN.

I have read elsewhere that being "out of status" is not the same as being "illegaly present". AOS denial usually happens in the latter case, not in the former....and illegal presence usually accrues from expired I-94s or H1 cancellations...

I dunno...I guess I'm hoping it woudn't be an issue. Maybe I should simply use AP for her as well.
 
Honeyjarjun,

How would INS know that you were out of status? Only on Tax Return, because it has to show you got w-2 from your H-1 sponsor? Why not talk to the consulting firm for possible paychecks, even if only one paycheck, so long as you have w-2. You still have more than one month to sort this out?

Me and my hubby just had interview Tuesday, and the specific questiion that the officer didn't let go is the lag between our I-20 ending date and starting date on OPT card. Even if I told her about 60-day grace period, she still wanted us to submit proof of legal status. Now I regretted so much why there was a lag back then, otherwise our case would have been approved and we would have a peace of mind on this thanksgiving...

Your argument is correct, you only have 180 days or less, otherwise if your PD is after 4/30/01, you are done.

Good luck.
 
Dabuk,

My understanding: So long she has H-1 and on that year's tax return she can show income by w-2, that's fine. Paycheck can be issued in a lumpsum or bi-monthly, monthly, quarterly, this is not required by INS. Your lawyer should not have put down in writing anything like she didn't work, blablabla. Grey area in immigration law has to be interpreted by the officer, not the applicants not the lawyer.
 
Last edited by a moderator:
Hi waitinginnyc,
I guess the lawyer thought that was the best thing to do. She has attached a note at the end that my wife was employed from Oct 2004, but started receiving pay only from April 2005 because SSN was not issued in the intervening periods.

By what you say, would it be fine if the consultant gives her a lumpsum amount retroactively for the months of Jan-March (3 months), along with some form of a letter that states that she is being paid retroactively upon confirmation of her employment (hence after 6 months) in November? Would not USCIS consider this as *fishy*?

thanks,
dabuk...

waitinginnyc said:
Dabuk,

My understanding: So long she has H-1 and on that year's tax return she can show income by w-2, that's fine. Paycheck can be issued in a lumpsum or bi-monthly, monthly, quarterly, this is not required by INS. Your lawyer should not have put down in writing anything like she didn't work, blablabla. Grey area in immigration law has to be interpreted by the officer, not the applicants not the lawyer.
Click to expand...
 
They would ask for the past 2 months' paystubs at the time of interview/adjudication. As for the prior year's tax return, they would ask for w-2 as supporting documentation. So if the lawyer hadn't volunteerred the information, your wife would be perfectly fine so long as her w-2 wage was not substantitially lower than what was claimed on H-1B application.

Since you already volunteered the information, they might want to see specific proof, and it would be a headache. Don't wait and just go to fix the problem right now.

Prepare for the worst and hope for the best. No one has a final say except the adjundicator. So why take any risk?

I do believe law is all about logics, so a good lawyer would never have wanted to do that (sorry to say that, but I was really supprised to know that your lawyer volunteered that info.)

BTW, what I understand may not be logically perfect. It is just my 2-cents.


dabuk said:
Hi waitinginnyc,
I guess the lawyer thought that was the best thing to do. She has attached a note at the end that my wife was employed from Oct 2004, but started receiving pay only from April 2005 because SSN was not issued in the intervening periods.

By what you say, would it be fine if the consultant gives her a lumpsum amount retroactively for the months of Jan-March (3 months), along with some form of a letter that states that she is being paid retroactively upon confirmation of her employment (hence after 6 months) in November? Would not USCIS consider this as *fishy*?

thanks,
dabuk...
Click to expand...
 
waitinginnyc said:
I do believe law is all about logics, so a good lawyer would never have wanted to do that (sorry to say that, but I was really supprised to know that your lawyer volunteered that info.)
Click to expand...

It's mind-boggling to me that the attorney would volunteer this information. While you should NEVER lie or deliberately conceal material information, you also don't need to go out of your way to volunteer it.

The one saving grace in all of this is that if your wife was working and eventually got paid after her SSN was issued, she might have been in legal status the entire time. If USCIS kicks up a stink, if all the back wages were paid on issuance of the SSN, then she's fine. But if she wasn't working OR getting paid, then she has a problem.

It's not fatal to the GC itself, just the I-485.
 
TheRealCanadian said:
It's mind-boggling to me that the attorney would volunteer this information. While you should NEVER lie or deliberately conceal material information, you also don't need to go out of your way to volunteer it.

The one saving grace in all of this is that if your wife was working and eventually got paid after her SSN was issued, she might have been in legal status the entire time. If USCIS kicks up a stink, if all the back wages were paid on issuance of the SSN, then she's fine. But if she wasn't working OR getting paid, then she has a problem.

It's not fatal to the GC itself, just the I-485.
Click to expand...

That's interesting.....does that then mean that all she needs is proof that a lumpsum amount has been paid this calender year? Does it have to be immediately upon issuance of the SSN, or can she receive this retroactively, say in December as "bonus" and in recognition of services rendered for Jan/Feb/Mar?

I mean, this is really stupid. The law firm is a pretty prestigious one, and I repeatedly asked them if this was a safe thing to do (volunteer such info),and they assured me it was...
 
The problem is that if the lawyer had stated that your wife didn't work during that period, would INS just take that and decide that she didn't work? I am not sure if a person can work before SS# is issued. Now this is really some grey area to cover and it becomes your burden to prove.

Also, as for good lawyer, price is NOT the measurement. I know a lawyer who charges $350/hr, and doesn't know as much as I myself do about immigration issues. She even suggested that 1099 instead of w-2 can be issued to an employee. If it were not for politeness, I would have told her that she was someone to ruin an immigrant's life, not to help at all.

You may want to change lawyer, I really think so.


dabuk said:
That's interesting.....does that then mean that all she needs is proof that a lumpsum amount has been paid this calender year? Does it have to be immediately upon issuance of the SSN, or can she receive this retroactively, say in December as "bonus" and in recognition of services rendered for Jan/Feb/Mar?

I mean, this is really stupid. The law firm is a pretty prestigious one, and I repeatedly asked them if this was a safe thing to do (volunteer such info),and they assured me it was...
Click to expand...
 
dabuk said:
does that then mean that all she needs is proof that a lumpsum amount has been paid this calender year? Does it have to be immediately upon issuance of the SSN, or can she receive this retroactively, say in December as "bonus" and in recognition of services rendered for Jan/Feb/Mar?
Click to expand...

She needs to prove that she was meeting the conditions of her H-1, namely that she was working, and that she got paid for said work, even if it was later. Both conditions need to be met in order for her to have been in status during that time. So was she working, and did she get her salary paid eventually?
 
waitinginnyc said:
The problem is that if the lawyer had stated that your wife didn't work during that period, would INS just take that and decide that she didn't work?
Click to expand...

Of course they would. If someone volunteers some unnecessary information under pain of perjury, USCIS will generally take it at face value.

I am not sure if a person can work before SS# is issued. Now this is really some grey area to cover and it becomes your burden to prove.
Click to expand...

Of course you can work without an SSN.
 
TheRealCanadian said:
She needs to prove that she was meeting the conditions of her H-1, namely that she was working, and that she got paid for said work, even if it was later. Both conditions need to be met in order for her to have been in status during that time. So was she working, and did she get her salary paid eventually?
Click to expand...

Hi RealCanadian,

She got an H1 through a consulting company, the way it usually works for most small consulting companies is you get a client, they take a cut and pay you the rest. Most consultants, in order to maintain legal immigration status "generate" pay stubs from their employer. I was foolish not to insist on the same since she did not have an SSN, and didn't know that this trouble could happen at AOS time.

What I am seeking at this point is a solution to the above problem. So, fine she does not have paystubs for the month of Jan/Feb/March, but can it be argued that she did not have an SSN and hence didn't get paid. Can it also be argued that she got paid retroactively in the month of December (which is in the same financial year) upon "confirmation" of her employment?

How does one prove that one was/was not employed for the said duration? She has an appointment letter that gives her start date as Oct 1, so yes she was working all the time, by the strict definition that her services were available to the employer and the employer "chose" not to burden her with any work.

I know it's not perfect, but would it be acceptable if an RFE arrives or if her case is denied?

BTW, someone mentioned that it is not a problem for the green card per se, but only for the AOS phase....isn't AOS phase all that there is where a depenedent might get stuck? I mean, if AOS is denied, that means that the GC is denied, correct?

BTW thanks a lot folks....this discussion has been very helpful...
 
The last resort for your wife is she is still eligible for AOS because even if she was "out-of-status" during the first 3 months, it was less than 180 days, and 245(k) can be used. This argument can be used if you have an interview or receive RFE or receive a denial notice for her I-485. Be prepared, because your lawyer told them she was not working then!!! Hope for the best, though. Ask the lawyer if she knows about 245(k), if she doesn't, change lawyer.

As for the "make-up" methods, the more you say, the more difficult to argue if further details are requested.
 
Honeyarjun said:
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.
Click to expand...

Hi Folks,


After a lot of discussion with my lawyer, I'm given to believe that there is some problem with being "out of status" AT THE TIME OF FILING AOS though not nearly as fatal as being in "illegal status" AT ANY POINT IN TIME. The two are slightly diffferent.

(a) At the time of filing the AOS petition, if you were in a non-immigrant status that was not "clean", for e.g being on H1 and not working, then there is a possibility that your AOS application may be denied. This does not mean that you're subject to the 3/10 year bars, only that you will have to depart the country immediately (unless of course you can manage to get on a different non-immigrant status upon denial). If your spouse's GC is approved, then you can do Consular Processing in India, provided your dates are current at the time of interview. There is very little chance of this happening, especially for dependents in a GC application

(b) If your status was not clean (like my wife's), then to be 100% sure, lawyers advise to withdraw your AOS application, and re-file. In the current scenario, that would mean withdraw when the priority dates become current, and re-file provided your non-immigrant status at the time of filing is clean, for e.g. if on H4, then you have not been working, if on H1, then since the last entry you have been maintaining continuous status etc etc.

(c) So, the trick to keep all your options open is to maintain a non-immigrant status even when your AOS is pending. One can do this by always working on H1 until GC is approved, and traveling on the H1/H4 visa.
 
AOS Re-filing?

Hi folks,

I know this might be a slightly stupid question, but can one withdraw an already filed AOS petition and re-file? I ask this because of the following sequence of events in my wife's case.

(a) Initial AOS application filed in Sept 2005 in a non-immigrant status (H1), where there was a period of violation of status (i.e. not working for the petitioning employer) from the start of her H1 approval date (Oct 1 2004-April 4 2005) since her last entry (Feb 2004). The lawyer mentioned this in the filed application and stated it as "Unavailability of SSN" which is only partially true.

(b) She was working for her H1 employer until December and has paystubs/tax returns to prove the same, and she resigned in December. In short, she never used her EAD.

(c) She obtained an H4 visa from Chennai consulate in January, and re-entered on Feb 1st (on our lawyer's advice) on the same. Obviously, she hasn't used her AP and has been admitted as an H4.

Now, the priority date for my case has become current, can she withdraw her previously filed petition and re-file? Does this cause a problem/raise eyebrows? Legally, I guess this is the correct thing to do, since you must be in a clean non-immigrant status since your last entry to the country in order to file an AOS application, which she will be when she files her 2nd AOS.

Question is, how does USCIS interpret these sort of things?

Thanks,
Dabuk
 
Just to make my life miserable

Here we go guys.
My wife’s AOS of denied on Feb 25th 2006.If you read my previous post you will find my complete story. I’ll try to summarize it for those of you who don’t have time to read the whole thing.
I was granted green card on Feb 28 2005(EB3). My priority date is May 2 2002.My wife’s case didn’t get adjudicated till August the same year. We received NOID sometime in late August claiming that my wife has been out of status for 183 days.
She had F1 visa and she completed her studies in February 2002.We filed COS for H4 visa in July. She was granted H4 visa in September. She has been out of status between February and September (183 days). We argued that we applied for COS before the 180 days expired and INS failed to adjudicate the case in a timely manner.
They disagreed and we received the denial today.

To make things worst. My wife is 8 months pregnant and she is taking it really emotionally.(I wouldn’t tell her before the baby was born but my lawer accidently left her a message thinking that he was leaving me message).

Anyway ,to make things even worst ,there are no visa available (retrogressed category) so we can’t even do consular processing.

Please fill free to leave any comments. Maybe tomorrow I’ll let you know of what I’m planning to do.
I’m thinking about a few things. I’d read the statute and find out if H1-B for her is an option.
 
Really pathetic

PaulK

Can't imagine the USCIS being so mean!
Maybe you could consider reverting back to F-1? Isn't that easier to do?

Also, was she "out of status" as per her I-94 expiry date?

Take care.
dabuk
 
Dabuk,

F1 is no longer an option.She showed an immigrant intent by filing I-485.F1 requires a non-immigrant intent.
You are right.INS has become very mean.This is their thanks for my taxes(we pay around $28000 a year).We haven't even had a traffic violation in the past 5 years.
Anyway,
She was out of status because the F1 was DOS(duration of status).INS took the date of the graduation as an end of the duration of status)The problem is that if she was granted COS as of the date of filing of her H4 she wouldn't be more than 180 days out of status.
The question is how you interpret the law. I believe INS interpreted wrong that's why I'm considering filing a lawsuit
 
i am in the same kind of situaton.
Using my experience, what you can do, apply for correction of record according to Pearson memo and field manual "Affect of approval on unlawful stay" It says that in case of approval even untimely filed application your status rolles back to the expiration date of previously granted one.
Meanwhile file MTR with the same authority.
Mine I- 824 9 action on approved application has been granted, but now case is in IC. If you go thru correction of reccord it may be more swift .
MTR will take about 3 mo, if correction of record comes faster you win.
Thew trick is that any request about previous non immigrant status goes to differen officer so you brake the visious cirkle.
 
Akatu,

Thank you for the advise!
Do you know where I can dowaload the field manual you are talking about from?

Thanks
 
You must log in or register to reply here.
Top