RFE: EAD gap and 245(k)

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ChiaHead

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(APPROVED!!!) RFE: EAD gap and 245(k)

I just received RFE for my pending I-485 (EB1, ND 08.01) asking for a valid EAD from 04.04.03 to present, so I conclude that USCIS suspects a violation of 245(c)(8). I did have EAD gap this year being on payroll (long story), but for less than 180 days, so I did not expect such RFE since it’s obviously covered by 245(k).

Assuming that 245(k) applies to my case I want to understand what documents I need to provide in order to support the 245(k), so let's take a look at it.

An alien who is eligible to receive an immigrant visa under paragraph (1), (2), or (3) of section 203(b) [I-140 Approval Notice, showing 203(b)(1)(B)?] (or, in the case of an alien who is an immigrant described in section 101(a)(27)(C), under section 203(b)(4)) may adjust status pursuant to subsection (a) and notwithstanding subsection (c)(2), (c)(7), and (c)(8), if--

(1) the alien, on the date of filing an application for adjustment of status, is present in the United States pursuant to a lawful admission; [What is the date of filing? RD? ND? What can be sent as a proof?]

(2) the alien, subsequent to such lawful admission has not, for an aggregate period exceeding 180 days [Since I am asked for EAD from 04.03 to present will the current EAD be enough to prove less than 180 days gap?; or should I also send previous, EADs?] --

(A) failed to maintain, continuously, a lawful status;
(B) engaged in unauthorized employment; or
(C) otherwise violated the terms and conditions of the alien's admission.


I have read somewhere that USCIS now interprets “lawful admission” in 245(k) as “last lawful admission”. Is it true? If so, last time I was admitted to U.S. in 11.03 using AP, after the EAD gap, and of course had no violations of 245(c)(8) since then.

To me, however, “pursuant to a lawful admission” in 245(k)(1) and “subsequent to such lawful admission” in 245(k)(2) implies that it’s probably “last lawful admission before filing AOS”.

I also have a question about the following statement found on the RFE. “If the evidence submitted does not establish that your case was approvable at the time it was filed, it can be denied.” It sure is how I would like to see things done at the USCIS, but the RFE for my case has nothing to do with the time it was filed. Does this statement have any weight at all? Where it came from then?

I will be talking to my lawer but, please, share you experiences and thoughts if any.
 
Last edited by a moderator:
hony, thanks for reply. Yes, I've been using EAD for one year, then there was a gap, now I am on EAD again.
 
How long was the gap? Did you apply for the renewal before
the previous one expired or after?
 
The gap was 159 days. I did apply before it my previous one expired. BTW, my lawer told me that I am fine, but who knows.

He insisted that the RFE was issued because the USCIS didn't know that I got an EAD within 180 days, which doesn't surprize me as they kept asking me for an approved I-140 each time I filed for an EAD extension. Yeah, and they also may have difficulty counting days, I already experienced that before.
 
My RFE asked for EAD also

But, in my case my 6yr H-1B limit ended 04/03, and USCIS asked for "proof of valid status or employment authorization beyond 04/03 to the present". In my case, all I need to do is to send a copy of my latest EAD which covers "04/03 to present".

Is 04/04/03 a date siginifying end of your non-immigrant work visa (like H1 or L1)? If so, in my opinion, all they want from you is proof of EADs beyond 04/04/03. If your EAD gap included 04/04/03 (i.e. if your current EAD is effective only after 04/04/03) , only then might you need to go into all those scenarios/responses.

Hope this helps!
-Kevin
 
Thanks for reply. 04/04/03 is the expitration date of my first EAD, then there was a gap till I got a renewal in 09/03. Somewhere in 07.03 my EAD application got denied and that might also be a reason the RFE is triggered.
 
What was the reason for the denial of your EAD renewal
application around 07/03?
I would suggest you hire a competent immigration
lawyer who can help you with the 485 RFE response.
I believe you have 85 days to respond.
 
That one was RFE-ed for approved I-140, which I mistakenly replied with I-485 (I know it's a very stupid mistake, but I didn't expect they would ever ask for 2-year-old I-140). I already contacted a lawer and replied to this RFE claiming 245(k). Should I be worried?
 
I think with issues like this you should always be little
worried. I believe this is a gray area and there haven't
been many cases like yours. Basically you won't know for sure
until you get the approval/denial letter. Even if you
get a denial, you can always appeal.
When did they receive your RFE response? Could you
post/email some of the main points of the response?
 
Originally posted by ChiaHead
I already contacted a lawer and replied to this RFE claiming 245(k). Should I be worried?
Click to expand...

I just saw this thread. Based on the EAD renewal rejection, looks like you had an ajudication officer who was on the ball and correctly issued an RFE. If you were working on an expired EAD, then this was clearly unauthorized employment and a problem.

My understanding of 245k is that it covers periods of time out of status PRIOR to the filing of the adjustment. Section 245 clearly states that you cannot file an adjustment if you have ever been out of status, even for a single day. 245k is the sole in force exception to this. However, it says nothing about unauthorized employment after the adjustment was filed.

This seems complicated, and not good. You would be well advised to consult an attorney who has experience in complicated adjustments that involve illegal employment.
 
Should I be worried?
Click to expand...

Before you say something, I already got worried and went to check the status. Guess what?

All my family has been APPROVED as of 01/07/04. Hope that my experience can be usefull for someone!

Here are my details:

RD: 07.01
ND: 08.01
1FP: 01.02
1RFE: 09.02 (medical)
1EAD: 04.02
2FP: 08.03
2EAD: 09.03
2RFE: 12.03 (EAD gap)
AD: 01.04
 
That's a great news, congrats. Could you post/email some
of the main points of the RFE response, especially why
the EAD gaps are ok? Would be nice if you could post
the name of your lawyer if you could, some people might
find it useful.
 
However, it says nothing about unauthorized employment after the adjustment was filed.
Click to expand...

That's the key point and that's exactly why many lawers would tell you that you don't need an EAD at all after you file for adjustment. They think that 180 days clock is stoped once you filed for 180 days and this interpretation was confirmed by INS officials a while ago.

My understanding is that the 180 days clock is reset every time you legally enter the US before filing for AOS. Then you can violate 245(c)(8) for 180 days and still be OK. I am not sure what happens if you reenter the US while AOS is pending. I am also not sure if the clock is stopped after you file for AOS, as many lawers would tell you.
 
Did you work for the same employer the whole time or did you
use AC21? Does it matter in this case?
 
That's a great news, congrats. Could you post/email some of the main points of the RFE response, especially why
the EAD gaps are ok?
Click to expand...

Basically I just pointed out to 245(k), stated that i was in the US at the time of filing, send copies of previous and current EADs and included some math to show that the gap between them was less than 180. That's it!

Would be nice if you could post
the name of your lawyer if you could, some people might
find it useful.
Click to expand...

Frankly speaking I don't trust lawers much as I heard all kinds of interpretations of 245(k).

I cannot recommend this particular one as I only had two 15 minute meetings with him. The first one was regarding the RFE for an employment offer back in the I-140 stage, so showed him a draft of the reply, he made a few comments, took $40 and I left. The second one was the same, but he didn make any comments, and didn't charge me saying that he didn't provide any input.
 
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