Grandhipal
Registered Users (C)
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
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.
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
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.