Used EAD/I-485 Pending - Lost non-immigrant status

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nataraj7

Registered Users (C)
Joined Company A on 10/2003 on non immigrant visa - H1B Approved
Company A filed Employment based Green Card using Pre Approved Labor with PD 11/07/2000. I:140 Filed on 12/19/2003

using substitute labour with PD 11/07/2000 -- I-140 Approved on July 20, 2004.
I-485 Filed on Feb 26, 2004. AP/EAD approved. While I was with Company A, my I-140 got approved and my I-485 was

pending more than 181 days.

Spoke with HR of company B and they told me that I can work on EAD (AC21).
On 10/2004 left Company A and joined Company B using EAD with I-485 Pending (lost non-immigrant status).
Travelled to India and returned to USA using AP (US Departure Date:02/18/2005-Arrival Date:03/14/2005) while I was

with company B.
As of date my I-485 is pending (3 EAD cards and AP got approved). Lost non-immigrant status on 10/2004 when I joined

company B, but after my I-485 was filed on Feb 26, 2004 with a valid EAD.

Recently had interview with USCIS Charleston office. Adjudicator wanted me to file I-485(Schedule A) with penality

of $1000.00 (reason OUT OF STATUS)
Problem here is: Mine is a substitute case and adjudicator is thinking that my labor was filed in my name before

April 30, 2001 (based on section 245 i of INA act).
Have been continuosly employed (similar job as mentioed in I140). Have all the paystubs, all W2's, all tax filing

etc.
I am sure that there are so many persons like me who have used EAD to work and have lost non-immigrant status. How

cases like this will be adjudicated.
 
The ajudicator is clearly in error. Have you ever been out of status prior to the filing of the I-485? If he believes so, ask him to state the specific dates. After the I-485 doesn't matter; you are allowed to lose non-immigrant status because the I-485 keeps you in status as an adjustee.

You may need an attorney to help out, or ask the ajudicator to ask his supervisor for a second opinion.
 
I was on valid H1B status before 10/03. Again I went to INS office, but he is not agreeing on this at all. He is adament about this and he is telling me that I have voilated the non immigrant status. And also he is telling me that at the time of adjudication(employment based I-140) he wanted me to be in non immigrant status.
Confused.
Still not able to understand, the purpose of EAD.

Is there any law or memorandum which states that an alien can work on EAD after his/her I-485 has been filed (satisfying AC21 rule)?
 
nataraj7 said:
He is adament about this and he is telling me that I have voilated the non immigrant status.
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He is clearly in error. You should ask him to refer to the supervisor for a second opinion.

And also he is telling me that at the time of adjudication(employment based I-140) he wanted me to be in non immigrant status.
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Ask him to cite the section of the INA that requires this (hint: there is none.)

Is there any law or memorandum which states that an alien can work on EAD after his/her I-485 has been filed (satisfying AC21 rule)?
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That's the point of the EAD! What's the point of giving out an EAD to I-485 applicants if using it causes the I-485 to be denied?

You may need an attorney for this. Insist upon a second opinion before ajudication and if not, you'll need to file an MTR when the case gets denied. I'm sorry you got a stupid ajudicator who doesn't know the first thing about the law.
 
nataraj7 said:
I was on valid H1B status before 10/03. he is telling me that at the time of adjudication(employment based I-140) he wanted me to be in non immigrant status.
?
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As I understand it, yes he/she is right; at the time of filling AOS you should be in valid non immigrant status (for example valid H visa or so) (not out of status) and I think at that time you were on valid, non expired H visa and you invalidate it by using the EAD later on after you file AOS. So, what is the problem with him/her, I do not know.
 
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mmed said:
As I understand it, yes he/she is right; at the time of adjudication of the I-140 and also at the time of filling AOS you should be in valid non immigrant status
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For the I-485, yes. For the I-140, there is absolutely no requirement whatsoever that the applicant be in a valid non-immigrant status, or even in the US.
 
nataraj7 said:
I was on valid H1B status before 10/03. Again I went to INS office, but he is not agreeing on this at all. He is adament about this and he is telling me that I have voilated the non immigrant status. And also he is telling me that at the time of adjudication(employment based I-140) he wanted me to be in non immigrant status.
Confused.
Still not able to understand, the purpose of EAD.

Is there any law or memorandum which states that an alien can work on EAD after his/her I-485 has been filed (satisfying AC21 rule)?
Click to expand...


what are the other implications other that paying $1000.
Still 485 and rest of the process will continue right?


Ladude10

1st LC: PD July 2002 CA EB3 PBEC Status: Still waiting

2nd LC (Substitution) PD Jan 2000
I-140 RD 09/18/2006 AD 10/04/2006

485 is in TSC
I765 RD 12/8/06 AD 12/29/06
I131 RD 12/8/06 AD 1/08/07
I485 RD 12/8/06 LUD 12/31/06, 01/24/07
FP code 3 and bio done on 12/29/06
 
Thanks for all the replies to my original query. Took an infopass appointment to talk to adjudicator's supervisor, but they did not allow me to talk either to adjudicator or to supervisor. They told me I will have to respond based on the letter that they send it to me.
What options do I have now other that to wait for the letter (I don't know what kind of letter, probabily not denial letter).
When an INS officer is rude, will I be able to escalate the issue.

Thanks,
 
nataraj7 said:
Thanks for all the replies to my original query. Took an infopass appointment to talk to adjudicator's supervisor, but they did not allow me to talk either to adjudicator or to supervisor. They told me I will have to respond based on the letter that they send it to me.
What options do I have now other that to wait for the letter (I don't know what kind of letter, probabily not denial letter).
When an INS officer is rude, will I be able to escalate the issue.

Thanks,
Click to expand...

I think there is something missing or not posted to let us think with you. You may be violate your status at one point or another, not just using the EAD while you are on H , because thousands do that with no problem. Q: Is there any gap without employment before you join your employer B? Do you think that your employer A send anything to the USCIS regarding your I-140? before approval of I-140, did you work to anyother employer without the EAD?
 
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