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.