Possible 485 denial?

G

GreenKhwaared

Registered Users (C)
I started working on H1 after completing college in the US in August 2000. In July 2001, the startup company that sponsored me for H1 shut down. I then got the next job offer in December 2001 (slow economy, etc.), so I didn't work for 5 months. However, the I-94 on my H1 from the company that shut down was good till August 2003, so I was not unlawfully present. After getting this new offer, I wanted to apply for H1 transfer to start with the new company, so I hired a lawyer. He told me that since I was unemployed for 5 months, I won't get an H1 transfer. He recommended that I apply for a new H1 application, take the approval notice to Mexico, and then get a visa stamped from Mexico. I did just that, and came in and started working for the new employer. I am currently waiting for my 485 approval, which was filed in January 2006. My 140 is already approved. My question is as follows:

Q. Can CIS raise an objection on granting me 485 stating that I was out of status for 5 months from July 2001 to December 2001, even though a) My I-94 was valid and good during that period, and b) I had re-entered the country to start employment after this 5-month break. After all, I have been in constant employment since I last entered back in December 2001. Please note that my bio form (325A), submitted in Jan 2006, shows the 5-month break in employment, since it asked for employment history for the last 5 years.

Thanks in advance for your response. I would appreciate any thoughts on best guesses for you gurus.
 
If you are out of status (you earned less money than what is stated in H1 petition) then if it is less than 180 days, the adjudication officer will try to adjust your status under 245(k). For this you don't have to do anything. But if it more than 180 days, you can adjust your status under LIFE act 245(i).

There might be RFE to show your legal employment. Your out of status is counted only from your last entry and inspection before you filed your I-485. That means since you got a fresh I-94 after stamping your passport from Mexico your out of status before that won't count.
 
Thanks for your response. This is a little comforting. Please note that I am currently on proper H1 status, and have been on proper H1 status since December 2001, which is the last time entered the country on a new I-94. This means that I shouldn't worry.

I had never heard of the LIFE Act 245(i) that you mentioned. I read a little intro to it and learned that only those individuals can use it who had filed a class action lawsuit before a certain date. Is that right?
 
If you have not been out of status since your last entry into the US before filing the I-485 then a previous out of status period cannot hurt you. You do not need 245i or 245k relief.

All is well.
 
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