Unlawful Presence

[GYC]

I am wondering what is Unlawful Presence, anyone knows the how to calculate it?

I had a about 80 days gap from my practical training expire date to my firdt H-1B approval date, it was due to the H-1b quota used up in that year, I had to wait for the new quota, this was way back to 1998.

Will I have a problem with my I-485?? How can I prove to USCIS, I am afarid the original H-1B receipt notice was lost

Should I worry about this?

 

[ginnu]

I am wondering what is Unlawful Presence, anyone knows the how to calculate it?

I had a about 80 days gap from my practical training expire date to my firdt H-1B approval date, it was due to the H-1b quota used up in that year, I had to wait for the new quota, this was way back to 1998.

Will I have a problem with my I-485?? How can I prove to USCIS, I am afarid the original H-1B receipt notice was lost

Should I worry about this?

did you go out of US anytime after 1998 and entred on H1??

 

[geofu54]

I am wondering what is Unlawful Presence, anyone knows the how to calculate it?

I had a about 80 days gap from my practical training expire date to my firdt H-1B approval date, it was due to the H-1b quota used up in that year, I had to wait for the new quota, this was way back to 1998.

Will I have a problem with my I-485?? How can I prove to USCIS, I am afarid the original H-1B receipt notice was lost

Should I worry about this?

In addition to ginnu's question, can you clarify the followings for me please?

(1) What do you mean by the OPT expiration date here? Is that that date 60 days after the OPT ended or the OPT expiration date itself?
(2) Did you work and get paid between that 80 days gap?
(3) Did you file your H1-B and receive the receipt notice before the date 60 days after the OPT expiration?

Thanks.

 

[GYC]

HI ginnu and geofu54,

1. No, I had never left US since 1998.
2. My Practical training after graduate was good for a year, that ended on July 10, 1998, that is the date printed in my card, and My H-1B started on Oct 1, 1998, that was how I got the 80 days gap.
3. I had not been paid for that period.
4. I filed H-1B before July 10, 1998, I beleive notice of receipt was before that date too. But I don't have the notice myself, I am not sure if my lawer or employer still have it.

do I have a problem here?

 

[geofu54]

Let's look at worst case scenario for you:

1) you accrued unlawful prescense from expiry of OPT until H-1b approval. It is 80 days. However, you are protected under 245k that you could have been out of status, accrued unlawful prescense or worked without authorization for less then 180 days from the date of last entry until filing 485 and ultimate approval of 485.

Therefore, since it would have been less then 180 days you are covered under 245k. I'm assuming you haven't been out of status or had any other unlawful presense since then.

2) your labor was filed back in 1998 from what I remember. Therefore, since you haven't left the country and if you did accrue more then 180 days unlawful presence, you are covered under 245i since you had labor pending before april 30, 2001. You would just complete the supplement and pay $1,000 fine.

The above is worse case scenario for you and you have outs on both.

Therefore, Do not worry.

Overall I agree with what unitednations explained, and I don't think you should worry even according to the worst scenario, either. A little better thing is, I think that your unlawful presence was probably shorter than 80 days. One, you should be able to remain here lawfully for up to 60 days after the OPT expiration, so your clock started ticking on 9/9 (do I calculate it right?). In that case, it was about 3 weeks. Two, if your H1-b was filed while you were in status, your presence was authorized while it was pending.

So I believe your unlawful presence was max 22 days. It's still in line with the same story as unitednations explains (below 180 unlawful presence), but of course the shorter the better. I think this immigration thingy is partly about some impression game.

(By the by, when was your priority date of LC? The year 1998 was when you filed H1-b, right?)

 

[TheRealCanadian]

It's still in line with the same story as unitednations explains (below 180 unlawful presence), but of course the shorter the better. I think this immigration thingy is partly about some impression game.

To clarify 245k relief, there's no perception or discretion involved. It makes no difference if you were unlawfully present or illegally employed for 1 day or 179; so long as it was less than 180 days USCIS is forbidden to deny the case on that basis.

 

[geofu54]

To clarify 245k relief, there's no perception or discretion involved. It makes no difference if you were unlawfully present or illegally employed for 1 day or 179; so long as it was less than 180 days USCIS is forbidden to deny the case on that basis.

Thanks

So what if his/her labor was filed later than the 2001 line?

 

[GYC]

Thanks all of you, now I have a peace of mind on this issue.
Yes, My LC was filed in 1998.