RFE issued at TSC and lawyer asking me to file 245-I

S

sidvan

Registered Users (C)
I need help/advise from you guys in this forum.
SRC-01-280-xxxxx
RD: 8/01
ND:9/01
FP:6/03
RFE:3/04

Background on my case.
I had H1 with Employer A valid from May 1998-May2001.
Quit Employer A and joined Employer 2 in Aug 99.
Employer 2's H1 was from Jun 99 to Jun 2002.
Went to India in March 2000 and when I re-entered US, used the H1-B Visa of Employer A (which was still valid at that time).
I-94 issued at Port of Entry, had the validity date till May 2001, which overrode the the employement extension I had from Employer B.
485 was filed in Aug 2001.

Now INS is asking what was my legal status from May 2001 to Aug 2001.
According to my lawyer, since the I-94 issued at the port of entry had validity only till May 2001, it overrode the I-797 I had from Employer B which was valid till Jun 2002. Ideally the I 94 issued at the port of entry should have been upto Jun 2002. So i was not in legal status from May 2001 to Aug 2001 and he is asking me to file a 245-i waiver along with the RFE.

Don't know what my options are.Please advise.
 
Originally posted by sidvan


Background on my case.
I had H1 with Employer A valid from May 1998-May2001.
Quit Employer A and joined Employer 2 in Aug 99.
Employer 2's H1 was from Jun 99 to Jun 2002.
Went to India in March 2000 and when I re-entered US, used the H1-B Visa of Employer A (which was still valid at that time).
I-94 issued at Port of Entry, had the validity date till May 2001, which overrode the the employement extension I had from Employer B.
485 was filed in Aug 2001.

Now INS is asking what was my legal status from May 2001 to Aug 2001.
According to my lawyer, since the I-94 issued at the port of entry had validity only till May 2001, it overrode the I-797 I had from Employer B which was valid till Jun 2002. Ideally the I 94 issued at the port of entry should have been upto Jun 2002. So i was not in legal status from May 2001 to Aug 2001 and he is asking me to file a 245-i waiver along with the RFE.

Don't know what my options are.Please advise.
Click to expand...

Ideally, you should have shown them the approval notice from employer B when you re-entered US. I believe you can still have a valid visa from previous employer, but if you show another I-797 from another employer with a later validity date, they would give you a I-94 for the later data. But thats all water under the bridge.

Actually, you were just not out of status, you were considered unlawfully present as you overstayed your last I-94. So you would normally be ineligible for AOS unless you use a waiver like 245. Your lawyer seems right.
 
Get second opinion from another attorney...........just for peace in mind.... u do und $1000++++ exp (for 245(i) fine)

Good LUck keep us update
 
It is not at all a problem.

I travelled India with my previous visa which my company layoff. When I reenter I shown the new H1 Visa Document and the INS officer issued the new i94 till my old visa date not the i94 which i have H1 validity.

He asked me to revalidate the visa with new H1 and your H1- I94 will be new I94 for you. I just sent my H1 visa revalidation, waiting for the reply from Dept of State, Visa from DC.

I hope you are ok, if you are not sure go to some other lawer and enquire about it.

All the best for your approval which is coming soon.

BaSh.
 
Re: Re: RFE issued at TSC and lawyer asking me to file 245-I

Originally posted by jllag1
Actually, you were just not out of status, you were considered unlawfully present as you overstayed your last I-94. So you would normally be ineligible for AOS unless you use a waiver like 245. Your lawyer seems right.
Click to expand...

Bollocks. Ask the lawyer about 245k. There is NO REASON to waste $1000 without claiming 245k relief. If the out of status period was 180 days or less, 245k covers him.
 
Mine was very same case,

I got RFE too.

I just sent them copies of both the H1B approval.
My 485 got approved yesterday
 
You can ask any 2nd attorney's opinion, but I think your attorney is right.

In 99, Employer 2 must have asked for a copy of your I-94 on basis of which they must have filed for your new H1 with them.
Since entered back and you used the old h1 ( employer A's 797) ,
your I-94 then was based on employer A's 797 and not employer 2's 797.
Now the IIO has noticed that and issued the RFE.
You could use the provision in 245(i) for which you have to be in the US before a certain date ( dec 2000 ) i think.

All the best, tell us all which route you ultimately choose.
Also which IIO has issued the RFE?
 
Re: Re: RFE issued at TSC and lawyer asking me to file 245-I

Originally posted by jllag1
Actually, you were just not out of status, you were considered unlawfully present as you overstayed your last I-94. So you would normally be ineligible for AOS unless you use a waiver like 245. Your lawyer seems right.
Click to expand...

Bollocks. Ask the lawyer about 245k. There is NO REASON to waste $1000 without claiming 245k relief. If the out of status period was 180 days or less, 245k covers him.
 
Re: Re: Re: RFE issued at TSC and lawyer asking me to file 245-I

Originally posted by TheRealCanadian
Bollocks. Ask the lawyer about 245k. There is NO REASON to waste $1000 without claiming 245k relief. If the out of status period was 180 days or less, 245k covers him.
Click to expand...

If you read, I said "waiver like 245". I did not explicitly say, use 245(i). How come it is "bollocks"???
 
should I call National service center and ask them if I need to file for 245-I or just send in both the H1s?
EDIT: I called NSC, the general support agent couldn't answer, she transfers me to another agent. According to this agent, they are asking me to send a letter along with copies of both H1's and I94's and explain the problem.
 
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If you do that, let your lawyer handle it. Also make sure to send it by registered mail. That seems to be a solution if you don't want to spend $1000 and see if they accept the explanation.
 
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