UnitedNations- others - 245(k)

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eskimohere

Registered Users (C)
Regarding 245(k) - Does it resets upon entry if you have worked without authorization for more than 180 days?

My husband worked without authorization for more than 180 days. Our attorneys advised us that in order to use 245(k) he would have to leave/reenter and it would be reset. I asked them if he needed to get another H4 stamp, they said NO because the H4 extension application asked the question about being on status since you got that visa. They said:

"He may have worked without authorization while in H-4 visa classification and is therefore considered to have violated his H-4 status. Status violations do not automatically cancel the validity of a visa stamp. However, under the provision of law INA § 222(g), when an individual overstays the expiration date on their I-94 card, their visa stamp is considered to be void. XX has not overstayed his I-94 card as his H-4 status expires on XX (later date)"

I'm pretty confused :confused:
Thanks
 
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For purposes of section 245(k), an alien may adjust under section 245(a) as long as the alien, as of the date of filing, has not violated status, has not engaged in unlawful employment, and has not had any violations of the terms and conditions of nonimmigrant admission, for a period in excess of 180 days in the aggregate subsequent to the alien's last admission under which he/she is presently in the United States.
 
eskimohere said:
Regarding 245(k) - Does it resets upon entry if you have worked without authorization for more than 180 days?

My husband worked without authorization for more than 180 days. Our attorneys advised us that in order to use 245(k) he would have to leave/reenter and it would be reset. I asked them if he needed to get another H4 stamp, they said NO because the H4 extension application asked the question about being on status since you got that visa. They said:

"He may have worked without authorization while in H-4 visa classification and is therefore considered to have violated his H-4 status. Status violations do not automatically cancel the validity of a visa stamp. However, under the provision of law INA § 222(g), when an individual overstays the expiration date on their I-94 card, their visa stamp is considered to be void. XX has not overstayed his I-94 card as his H-4 status expires on XX (later date)"

I'm pretty confused :confused:
Thanks
Click to expand...

Problem here is automatic bar can be enfoced even at the time of entry. How many days did he work illigally? Check if you can some how reduce the number of days.
Did he file the tax return? Did he made the contribution to SS?
 
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eskimohere said:
Regarding 245(k) - Does it resets upon entry if you have worked without authorization for more than 180 days?

My husband worked without authorization for more than 180 days. Our attorneys advised us that in order to use 245(k) he would have to leave/reenter and it would be reset. I asked them if he needed to get another H4 stamp, they said NO because the H4 extension application asked the question about being on status since you got that visa. They said:

"He may have worked without authorization while in H-4 visa classification and is therefore considered to have violated his H-4 status. Status violations do not automatically cancel the validity of a visa stamp. However, under the provision of law INA § 222(g), when an individual overstays the expiration date on their I-94 card, their visa stamp is considered to be void. XX has not overstayed his I-94 card as his H-4 status expires on XX (later date)"

I'm pretty confused :confused:
Thanks
Click to expand...
Now follow the law.
 
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tammy2 said:
Problem here is automatic bar can be enfoced even at the time of entry. How many days did he work illigally?

My understanding is that the bar comes into effect if it is 180 days or more AFTER I-94 expiry date. It is not related to number of unauthorized employment days. Please check with your attorney on this.

Check if you can some how reduce the number of days.
Did he file the tax return? Did he made the contribution to SS?
Click to expand...
 
tammy2 said:
Problem here is automatic bar can be enfoced even at the time of entry. How many days did he work illigally? Check if you can some how reduce the number of days.
Click to expand...

Unless he overstayed an I-94, no illegal presence has been accrued and no re-entry bars will apply.
 
He never overstay his I-94, so therefore no illegal presence.
He already left and reentered. He quit his illegal job back in July, so he is clean since he came back. The attorneys said the adjudication will be discretionary but that he should be covered by 245(k). Moreover, that in their experience USCIS has applied 245(k) favorably in cases like this. The law firm is Fragomen... Any comments??? I want to believe the attorneys and at this point maybe that is what we have left... but I'm so confused with what I read.
 
eskimohere said:
The attorneys said the adjudication will be discretionary but that he should be covered by 245(k). Moreover, that in their experience USCIS has applied 245(k) favorably in cases like this.
Click to expand...

What "discretion"? 245k relief clearly applies, and therefore USCIS has no discretion in the case. They must approve it.
 
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