**** Was I out of status? ****

B

bimbo07

New Member
I was laid off in Oct 2002. Company A transferred my H1B visa in Nov 2002.
Economy was pathetic during those days and hence we were not able
to find a project until Mar 2003 [I got my first pay check in mar 2003].


I joined company B in Sep 2003 and since then I'm with them. My labor,140,
EAD,AP are approved recently through company B.

Please provide your comments on my situation.

1) Was I out of H1B status from Nov 2002 to Mar 2003?
2) Will this be an issue for my 485 processing? if yes can I claim
that I was on extended vacation plus health issues?[I'm aware
that USCIS dosen't recognize bench period, and definately not
unpaid bench period]

Thanks!
 
Last edited by a moderator:
Yes, legally speaking you are out of status from Oct 2002-Mar 2003. But remember INS is not aware of it.

You have nothing to worry much, you can invoke 245(k), which allows "adjustment of status" to go through, if you have been out of status or illegal for not more than 6 months. In your case it is only 5 months. So you should be fine.

Dont worry and have fun, and congrats for your I-140 approval.

bimbo07 said:
I was laid off in Oct 2002. Company A transferred my H1B visa in Nov 2002.
Economy was pathetic during those days and hence we were not able
to find a project until Mar 2003 [I got my first pay check in mar 2003].


I joined company B in Sep 2003 and since then I'm with them. My labor,140,
EAD,AP are approved recently through company B.

Please provide your comments on my situation.

1) Was I out of H1B status from Nov 2002 to Mar 2003?
2) Will this be an issue for my 485 processing? if yes can I claim
that I was on extended vacation plus health issues?[I'm aware
that USCIS dosen't recognize bench period, and definately not
unpaid bench period]

Thanks!
Click to expand...
 
rajeevnair32 said:
Yes, legally speaking you are out of status from Oct 2002-Mar 2003. But remember INS is not aware of it.

You have nothing to worry much, you can invoke 245(k), which allows "adjustment of status" to go through, if you have been out of status or illegal for not more than 6 months. In your case it is only 5 months. So you should be fine.

Dont worry and have fun, and congrats for your I-140 approval.
Click to expand...

Could somebody please explain more on 245 k?
 
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fast_gc_seeker said:
Could somebody please explain more on 245 k?
Click to expand...

It's a provision in the legal code that allows people who have been out of status for up to six months (180 days) to still apply to adjust status to permanent residence. The 180 day period is reset everytime you are properly admitted/inspected into the country at a POE.
 
wik said:
It's a provision in the legal code that allows people who have been out of status for up to six months (180 days) to still apply to adjust status to permanent residence. The 180 day period is reset everytime you are properly admitted/inspected into the country at a POE.
Click to expand...

So if somebody's wants to use the provision of 245k does that
person need to fill out some form? or this is like AC-21 where an
individual can just send a letter?
 
bimbo07 said:
I was laid off in Oct 2002. Company A transferred my H1B visa in Nov 2002.
Economy was pathetic during those days and hence we were not able
to find a project until Mar 2003 [I got my first pay check in mar 2003].


I joined company B in Sep 2003 and since then I'm with them. My labor,140,
EAD,AP are approved recently through company B.

Please provide your comments on my situation.

1) Was I out of H1B status from Nov 2002 to Mar 2003?

2) Will this be an issue for my 485 processing? if yes can I claim
that I was on extended vacation plus health issues?[I'm aware
that USCIS dosen't recognize bench period, and definately not
unpaid bench period]
------ no need to inform if the USCIS dont ask.
Thanks!
Click to expand...
----------Your employer violated H1law /regulations by not paying you minimum as on LCA and if USCIS discover it then you can use 245(k) and you were out of status. Remember being illegal is different that out of status. No need to worry if the USCIS discovers before they approve I-485 they will ask for explanation (very unlikely because they will just search for your I-94 validity dates if you were on valid status when I-485 is filed and may not discover that you were not paid on H1) if they discover use 245(k) and pay $1000 you will be OK
 
ginnu said:
----------Your employer violated H1law /regulations by not paying you minimum as on LCA and if USCIS discover it then you can use 245(k) and you were out of status. Remember being illegal is different that out of status. No need to worry if the USCIS discovers before they approve I-485 they will ask for explanation (very unlikely because they will just search for your I-94 validity dates if you were on valid status when I-485 is filed and may not discover that you were not paid on H1) if they discover use 245(k) and pay $1000 you will be OK
Click to expand...

Thanks Ginnu.

Just wondering if 245K is a form or just a rule/provision #?

Its interesting to know that my x employer violated
the law by transferring H1 and not paying me.
They didn't find any project until Mar 2003, does
this mean they had to legally pay me from Nov 2002[the day my h1b application was sent]?
 
fast_gc_seeker said:
does
this mean they had to legally pay me from Nov 2002[the day my h1b application was sent]?
Click to expand...

No. They must pay you from the very day you joined the company (basically when you were put into company payroll). When did you join that company? Nov 2002 or March 2003?
Many consulting companies do a trick. They don't put employee in company payroll immediately and keep him/her in bench (as if employee did not join at all). If that happened for you, technically you were out of status for that period (unless you can prove that you actually joined on Nov 2002).
 
If you are out of status for not more than 6 months, you are eligible to apply for 485 under 245(k) fortunately. Please do not apply for AP and don't leave USA until your 485 is approved. You can apply for EAD.
 
For 245(k) you do not have to pay any fine. The $1000 fine is for 245(i). As long as you are out of status for less than 180 days there is no bar on enrering into US. So you can safely apply for AP and travel too.
 
nandpc said:
As long as you are out of status for less than 180 days there is no bar on enrering into US. So you can safely apply for AP and travel too.
Click to expand...

You can be out of status for 10 years and not face the re-entry bars. The 3/10 year bars are only for illegal presence; which is a different animal altogether. 99% of the time illegal presence is accured by overstaying an I-94.

As an example, I enter the US on an H-1 and am given an I-94 for 3 years. After six months, I am laid off. I remain in the US for another 2 years and 9 months, after which I depart. I have been out of status for 2 years and 9 months, but I have only overstayed my I-94 by three months. Therefore, I have only accumulated 90 days of illegal presence - no re-entry bar.
 
pralay said:
No. They must pay you from the very day you joined the company (basically when you were put into company payroll). When did you join that company? Nov 2002 or March 2003?
Many consulting companies do a trick. They don't put employee in company payroll immediately and keep him/her in bench (as if employee did not join at all). If that happened for you, technically you were out of status for that period (unless you can prove that you actually joined on Nov 2002).
Click to expand...


Company did my H1 transfer in Nov 2002. I got project in Mar 2003.
I didn't get paid from Nov 2002 to Mar 2003. Please guide me in understanding
if any employer can just transfer anybody's H1 and not pay until they
find a project.


USGC485 said:
If you are out of status for not more than 6 months, you are eligible to apply for 485 under 245(k) fortunately. Please do not apply for AP and don't leave USA until your 485 is approved. You can apply for EAD.
Click to expand...


FYI - My 140,AP,EAD all are approved and 485 is being processed.

I've already travelled outside on my current employers H1 and no questions
were asked. I'm travelling in Nov and plan to either use approved AP
or my H1. Why are you suggesting travel should not be done when
I've valid stamped H1 and valid AP?

nandpc said:
For 245(k) you do not have to pay any fine. The $1000 fine is for 245(i). As long as you are out of status for less than 180 days there is no bar on enrering into US. So you can safely apply for AP and travel too.
Click to expand...

Under what situation one has to pay fine? Is it @ POE?
I've an valid AP and valid H1 and I'm travelling abroad next month.

All comments are most welcome
 
fast_gc_seeker said:
Company did my H1 transfer in Nov 2002. I got project in Mar 2003.
I didn't get paid from Nov 2002 to Mar 2003. Please guide me in understanding
if any employer can just transfer anybody's H1 and not pay until they
find a project.
Click to expand...

I hope you understand the different between H1 transfer and joining a company. Former one is just a legal step for immigration to employ a foreign worker. Later one happens when employee joins the comapny (don't know how to explain "join" farther - basically showing up the face at office, filling-up W-4 form, filling-up benefit forms etc). If you did not "join" on Nov 2002, then you were out of status for that period. If you did join on Nov 2002 and your employer did not pay for that period, then your employer violated H1 rule). Merely H1 transfer does not define your status or out-of-status issue.
 
the above link posed is for 245(i)

for 245(k) read below:
http://www.immigrationlinks.com/news/USCIS%20Training%20Materials%20on%20Sec%20245(k).pdf
 
pralay said:
I hope you understand the different between H1 transfer and joining a company. Former one is just a legal step for immigration to employ a foreign worker. Later one happens when employee joins the comapny (don't know how to explain "join" farther - basically showing up the face at office, filling-up W-4 form, filling-up benefit forms etc). If you did not "join" on Nov 2002, then you were out of status for that period. If you did join on Nov 2002 and your employer did not pay for that period, then your employer violated H1 rule). Merely H1 transfer does not define your status or out-of-status issue.
Click to expand...

I dont understand what you meant by "join"...I've explained by situation
in detail earlier. Here is it again ...transferred H1 in Nov 2002[for me it
means i joined the company]..they started marketing me but didn't find
a project until Mar 2003[got my first pay check in Mar 2003]. Per many
experts when some company transfer H1 it means they specify on LCA
that x dollars will paid to the H1 beneficiary and if they dont pay its
considered violation of H1 rules...

anyway my main question was not to understand if my x employer
did something illegal. My question was to understand if I was out of status
between Nov 2002-Mar 2003. Many people have posted their comments
on this situation but I'm still not sure of my situation. I would also like
to know when does somebody use 245(k). for ex: My AOS is being
processed now and god forbid I get RFE then should I defend myself
using 245(k) or...?


Gurus, please guide me. Thanks!
 
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ginnu said:
the above link posed is for 245(i)

for 245(k) read below:
http://www.immigrationlinks.com/news/USCIS%20Training%20Materials%20on%20Sec%20245(k).pdf
Click to expand...

Could you please attach that pdf file here. Thanks.
 
fast_gc_seeker said:
I dont understand what you meant by "join"...I've explained by situation
in detail earlier. Here is it again ...transferred H1 in Nov 2002[for me it
means i joined the company]..they started marketing me but didn't find
a project until Mar 2003[got my first pay check in Mar 2003]. Per many
experts when some company transfer H1 it means they specify on LCA
that x dollars will paid to the H1 beneficiary and if they dont pay its
considered violation of H1 rules...
Click to expand...

If you received your first paycheck on March 03, probably (I can only guess) your employer put you into company payroll on March 03, not before that. Basically you joined that company on March 03. In that case you were out of status from Nov 02 - March 03.
 
pralay said:
If you received your first paycheck on March 03, probably (I can only guess) your employer put you into company payroll on March 03, not before that. Basically you joined that company on March 03. In that case you were out of status from Nov 02 - March 03.
Click to expand...


Yup, I joined payroll in Mar 2003...Will 245(k) save me if my AOS has any issues?
 
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