Urgent: EAD expired yesterday. Could not get interim today. What should i do?

From what I read, travelling on AP nullifies the 245(k) benefit.

Currently I am also in the process of renewing my EAD thru e-file and I din't apply for renewal 90 days in advance. I haven't yet scheduled for photographs/biometrics etc. I have close to 80 days for the current EAD to expire. The point here is - I am tensed too :mad:

Please take a look at the Q&A on Oh's web site (www.immigration-law.com and then go to "Visa Retrogression and Q&A) and then look for Q11 in first section.

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Q11(08-05-06): I am one of those EB-3 who filed concurrent I-140 and I-485 and are currently stuck with the EB-3 visa number retrogression. After I obtained EAD and Advanced Parole, I did not renewed my H-1B, even though I was eligible, and worked on EAD. I filed EAD extension application, and then pending the application I had to go back home in Korea because of the family emergency. After one month, I returned to the U.S. and resumed my employment with the same employer. For the unknown reasons, my EAD application has been stalled and I have been working with the employer for almost five months by now without a valid EAD. Since I did not renew my H1B nonimmigrant status , I came back using Advance Parole. What is going to be my future? A: Your case illustrates the reason why the EB-485 waiters may want to maintain either H or L visa status as long as possible pending I-485 application . Had you renewed H-1B status, you could have continued employment upon your return from the trip to Korea without EAD. Under the current USCIS policy, the I-485 waiters with a valid H-1B can travel on Advance Parole and resume employment without a valid EAD because the policy presumes that even though the alien is no longer in H-1B status, the alien is authorized to resume employment under the provision that gives an inherent employment authorization with the H-1B nonimmigrant status. This presumption is not available when the alien travels on an Advance Parole not in a valid H-1B nonimmigrant status. Your employment without EAD will subject you to a provision in the regulation that makes you ineligible for adjustment of status to a lawful permanent resident unless you are exempt from this provision. EB-485 filers are exempt from this provision under Section 245(k) if such unauthorized employment lasted less than 180 days since the last admission to the U.S. as a nonimmigrant. Here the actch word is the language "nonimmigrant." The only people who can benefit from the 245(k) provision is those who entered the country in a nonimmigrant status. When an alien enters the U.S. using Advance Parole, the alien is not entering as a nonimmigrant but as a parolee. The 245(k) benefit is not available to the parolees. It is thus likely that the USCIS may deny your EB-485 application as the 245(k) relief is not available for you. You should seek legal counsel to determine whether you should change the course and quickly depart and seek a consular processing. Once you accumulate six months of unauthorized employment and depart, you will be subject to the three-year bar from returning to the U.S. and the American consulate will deny your immigrant visa application. You will have another hurdle to seeking the immigrant visa processing immediately. It is the visa number retrogression. Since the EB-3 visa number is not available for you at this time, you will not be able to apply for an immigrant visa at this time. Please seek legal counsel immediately.

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Call me paranoid ...but only for this reason I am thinking of not crossing the border until I am thru this GC ordeal excpet for emergencies and other high priorities. My last entry was on H1B but I don't have H1B any more now. I am on EAD/AP now.
 
After filing 485, AP travel should not nullify 245(k)

From what I understand and my attorny's view, travelling on AP nullifies 245(k) benefit to file another 485 if the previous one was denied. AP travel should not nullify if your most recent entry/admission to USA at the time of filing 485 was "non immigrant". Here's an example
June 2003 - Entered USA on H1B
Jan 2004 - filed 485/140/765/131
Mar 2004- 140/765/131 approved, Mar15 - Started working on EAD
Nov 2004 - Travelled to India on AP
Jan 2005 - returned to US on AP
Feb 2005 - Filed for EAD/AP renewal (may be too late)
Mar 2005 - Tried for IEAD and could not succeed
Mar 2005 - Didnot received EAD renewal but client took a bling eye and never asked for it and employee continue to work on expired EAD.

I think above case should be qualified for 245 (k). Any thought Unitednations/RealCanadian or any senior Gurus?



Grandhipal said:
From what I read, travelling on AP nullifies the 245(k) benefit.

Currently I am also in the process of renewing my EAD thru e-file and I din't apply for renewal 90 days in advance. I haven't yet scheduled for photographs/biometrics etc. I have close to 80 days for the current EAD to expire. The point here is - I am tensed too :mad:

Please take a look at the Q&A on Oh's web site (www.immigration-law.com and then go to "Visa Retrogression and Q&A) and then look for Q11 in first section.

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Q11(08-05-06): I am one of those EB-3 who filed concurrent I-140 and I-485 and are currently stuck with the EB-3 visa number retrogression. After I obtained EAD and Advanced Parole, I did not renewed my H-1B, even though I was eligible, and worked on EAD. I filed EAD extension application, and then pending the application I had to go back home in Korea because of the family emergency. After one month, I returned to the U.S. and resumed my employment with the same employer. For the unknown reasons, my EAD application has been stalled and I have been working with the employer for almost five months by now without a valid EAD. Since I did not renew my H1B nonimmigrant status , I came back using Advance Parole. What is going to be my future? A: Your case illustrates the reason why the EB-485 waiters may want to maintain either H or L visa status as long as possible pending I-485 application . Had you renewed H-1B status, you could have continued employment upon your return from the trip to Korea without EAD. Under the current USCIS policy, the I-485 waiters with a valid H-1B can travel on Advance Parole and resume employment without a valid EAD because the policy presumes that even though the alien is no longer in H-1B status, the alien is authorized to resume employment under the provision that gives an inherent employment authorization with the H-1B nonimmigrant status. This presumption is not available when the alien travels on an Advance Parole not in a valid H-1B nonimmigrant status. Your employment without EAD will subject you to a provision in the regulation that makes you ineligible for adjustment of status to a lawful permanent resident unless you are exempt from this provision. EB-485 filers are exempt from this provision under Section 245(k) if such unauthorized employment lasted less than 180 days since the last admission to the U.S. as a nonimmigrant. Here the actch word is the language "nonimmigrant." The only people who can benefit from the 245(k) provision is those who entered the country in a nonimmigrant status. When an alien enters the U.S. using Advance Parole, the alien is not entering as a nonimmigrant but as a parolee. The 245(k) benefit is not available to the parolees. It is thus likely that the USCIS may deny your EB-485 application as the 245(k) relief is not available for you. You should seek legal counsel to determine whether you should change the course and quickly depart and seek a consular processing. Once you accumulate six months of unauthorized employment and depart, you will be subject to the three-year bar from returning to the U.S. and the American consulate will deny your immigrant visa application. You will have another hurdle to seeking the immigrant visa processing immediately. It is the visa number retrogression. Since the EB-3 visa number is not available for you at this time, you will not be able to apply for an immigrant visa at this time. Please seek legal counsel immediately.

--------------------------------------------------------------------
Call me paranoid ...but only for this reason I am thinking of not crossing the border until I am thru this GC ordeal excpet for emergencies and other high priorities. My last entry was on H1B but I don't have H1B any more now. I am on EAD/AP now.
 
Urgent :please help with your experience

Hi Guys : please help i am in big mess, I enterd this country on student visa, thean married to USC, filed I-488 in july 2003, everything done wiaitng for back ground check, I use to renew EAD in one day by visiting local INS office this year they changed this shit and you have to either E file or sent application to chicago mail box. I did E file, I applied one month before current EAD expires, also went to INS office begging for interm EAD for 2-3 months but no repsose they come after 90 days, I requested immigration officer that my job might be jepardy he said as long as they dont ask for EAD and allow you to work you can work, I can not believe that, paid 100 dollors to a lawyer to do something and he said me same thing that keep working, my work place dont care. lawyer said since you are married to USC it is fine?
Guys is it true? I was reading I-9 form requirements and some questiosn which states inc ase if some one doesnt have valid EAD they give penalty to company not you as emplyer is responsible to maintain correct record, is it true? any info any comment will be helpfull..thsi is very stresfull sitaution USCSI sucks they change laws with out making some customer ser5vice provision.. :mad : mad : mad
 
My understanding is that the onus is on your employer to ensure that you are legal to work and that they are the ones who will be penalized. Therefore if they don't mention it then you can plead ignorance and keep working. Of course it is possible that you could jeopardize your relationship with the employer if they end up being fined by CIS.

As far as taking vacation to tide you over the gap, I know there have been some conflicting viewpoints on this. My employer, a fortune 500 company, have told me that I must take an unpaid leave of absence. It is not enough to be on paid vacation. However you are allowed to remain on the company books as an employee as long as you are not working and are not compensated.
 
jimothy said:
My employer, a fortune 500 company, have told me that I must take an unpaid leave of absence. It is not enough to be on paid vacation.

USCIS doesn't care if you're paid; only that you're not working. Paid vacation should be fine, so long as you can document the fact.
 
yes, my employer asked me to go on unpaid leave. i was told that going on paid leave means it is "vacation" which means i am "still working" and getting paid.

jimothy said:
As far as taking vacation to tide you over the gap, I know there have been some conflicting viewpoints on this. My employer, a fortune 500 company, have told me that I must take an unpaid leave of absence. It is not enough to be on paid vacation. However you are allowed to remain on the company books as an employee as long as you are not working and are not compensated.
 
That's interesting to know. Unfortunately my employer have consulted their immigration attorney and I've talked to one privately also and we're both being told that leave of absence is the only solution. This is apparently the solution they have previously used and they are going to stick to it.
 
TheRealCanadian said:
USCIS doesn't care if you're paid; only that you're not working. Paid vacation should be fine, so long as you can document the fact.
I have to disagree with that. If you are salaried as opposed to hourly paid, then you are effectively still working while on vacation. If on the other hand you are hourly paid then you could argue that you are not working.
 
Regarding expired EAD

Hi,

I would like to share my story. I applied for an EAD in June. My current EAD expired in October. I did not receive my EAD in time. I put in a service request but did not receive a satisfactory response. I faxed in an expedite request to the 1800 number along with a letter from my employer. My case got approved in 2 days.
 
hi,

i would like to share my story. I applied for an ead in june. My current ead expired in october. I did not receive my ead in time. I put in a service request but did not receive a satisfactory response. I faxed in an expedite request to the 1800 number along with a letter from my employer. My case got approved in 2 days.

omg!!!
 
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