What would be my status ???

[vetagaadu]

My details are here:

02-08-2001...............Entered USA 1st time on Company "A" H1B (I-94 is valid thru 14 Feb, 2003).
04-28-2002...............Changed to Company B (Applied H1B and RD is May 02, 2003)
02-05-2003...............Denied Extension but approved H1B (NO I-94 attached here)
...............................(Reason stated that lack of submitting last 15 days paystub)
03-19-2003...............Appealed MTR for denial of Extension
(Supposed to appeal in 30 days, but INS center sent back and states to appeal in different center, so RD for MTR is Mar 19, 2003)
05-22-2003...............Left US
07-04-2003...............Got New Visa on Approved H1B (Company B)
09-09-2003...............Entered US second time (I-94 is valid until 16 Jan 2006)
12-15-2003...............GC filed (EAD, AP, I-140 & I-485) for me and spouse
I-735, AP and I-140 are Approved.

MTR for extension is still pending. If they approved my extension in MTR, then I am fine.

What if they deny MTR, then what was my status in the period between Feb 14, 2003 to May 22, 2003.

Could you please post your opinions.

 

[TheRealCanadian]

What if they deny MTR, then what was my status in the period between Feb 14, 2003 to May 22, 2003.

Out of status. So what? 245k covers you.

 

[vetagaadu]

Out of status. So what? 245k covers you.

Thanks,

I believe 245K covers since last entry only. So it won't cover in my case.
What you think that I can do !!

 

[TheRealCanadian]

I believe 245K covers since last entry only. So it won't cover in my case. What you think that I can do !!

But the prohibitions against being out of status and filing for an I-485 only cover since the last entry only as well. So again, you do not have a problem.

 

[vetagaadu]

But the prohibitions against being out of status and filing for an I-485 only cover since the last entry only as well. So again, you do not have a problem.

Thanks for your response. But I referred many sites, it states should be legal since entry (NOT since LAST entry).

Are you sure about the status should be fine since last entry ?

Thanks

 

[TheRealCanadian]

Thanks for your response. But I referred many sites, it states should be legal since entry (NOT since LAST entry). Are you sure about the status should be fine since last entry ?

Section 245 of the INA has the actual language, which is rather dense. But for all intents are purposes if you have maintained legal status since your last entry, or are covered by 245k, you are fine.

 

[clear485]

Section 245 of the INA has the actual language, which is rather dense. But for all intents are purposes if you have maintained legal status since your last entry, or are covered by 245k, you are fine.

I think Vetagaadu is bit of right...not sure...
even I found the below para from this link

http://www.ilw.com/articles/2001,1224-Paparelli.shtm#_ftn12

"In general, the INS has narrowly construed § 245(c)(2) in a manner that ensnares more aliens and limits the availability of the forgiveness provisions (no-fault-of-alien or for technical reasons). For example, purely as a matter of textual analysis, the INS could have found that the language prohibiting adjustment of status for aliens who failed to maintain continuously a lawful status since entry applies only to one who fails to maintain continuously lawful status since his or her last entry. This interpretation of the subsection would be reasonable. Instead, the INS-in an informal letter to an immigration attorney-has interpreted the language to include a failure to maintain continuously a lawful status at any time after any prior entry."

I too confused with above desc...could you eloborate this !!!!

Vetagaadu - what is your lawyer says about this ?

 

[TheRealCanadian]

The article is four years old. In all of the years that I have been posting here and on other immigration boards, I have never heard of USCIS or INS querying about maintenance of legal status for any period other than the time between the last entry and the I-485 filing.

So strictly speaking, USCIS might be able to claim that an alien who was out of status for a small period of time, then left the US and returned for 245k, was ineligible to adjust status. I've never, ever ever heard of that happenning.

 

[vetagaadu]

The article is four years old. In all of the years that I have been posting here and on other immigration boards, I have never heard of USCIS or INS querying about maintenance of legal status for any period other than the time between the last entry and the I-485 filing.

So strictly speaking, USCIS might be able to claim that an alien who was out of status for a small period of time, then left the US and returned for 245k, was ineligible to adjust status. I've never, ever ever heard of that happenning.

Even I never heard about this...still i'm nervous for this short illegal time (I wonder this considers illegal when MTR is pending ? I don't know)...

Thanks a lot TheRealCanadian for your valueble thoughts on my post...really appreciate...also plz provide more details if you know any in future....

 

[vetagaadu]

I think Vetagaadu is bit of right...not sure...
even I found the below para from this link

http://www.ilw.com/articles/2001,1224-Paparelli.shtm#_ftn12

"In general, the INS has narrowly construed § 245(c)(2) in a manner that ensnares more aliens and limits the availability of the forgiveness provisions (no-fault-of-alien or for technical reasons). For example, purely as a matter of textual analysis, the INS could have found that the language prohibiting adjustment of status for aliens who failed to maintain continuously a lawful status since entry applies only to one who fails to maintain continuously lawful status since his or her last entry. This interpretation of the subsection would be reasonable. Instead, the INS-in an informal letter to an immigration attorney-has interpreted the language to include a failure to maintain continuously a lawful status at any time after any prior entry."

I too confused with above desc...could you eloborate this !!!!

Vetagaadu - what is your lawyer says about this ?

thanks clear485. I saw the same kind of post earlier in different site, but not understood correctly.
my lawyer said "don't worry"

 

[CSHANKY]

Folks - this 'informal letter' is a letter which Miller, Deputy Asst. Comm'r, Adjudications, CO 245-C wrote in Jan. 8, 1990. The 245 (K) came into effect MUCH (1997) later.

I suggest all those who want to understand 245 (k) read "Never Say "i" " article which can be found on http://www.ilw.com/articles/2001,1224-Paparelli.shtm#_ftn12. This is an authoritative article which explains the 245 (K) in detail - suggest take a print out and read it. It can be quite enlightning !

From what I could understand, this is how 245(K) works:

1. You should have been legally admitted and in-status at the time of filing your I-485
2. You should not have violated your status for more than 180 days since your LAST entry and filing the I-485.


So, say you violated your prior stays by many days or years, went out of US , were legally admitted on date X, filed your I-485 on date Y and did no violation or had violation less than 180 days between X-Y. Then, all your past violations are null and void and 245 (K) is applicable.

But say you filed your I-485 and had been violating your status for more than 180 days. Even if you now went out after filing the I-485 and came back in, the last entry would not likely work.

Feel free to email me on cshanky@hotmail.com if you want to discuss further. I am in a similar situation and am getting prepared for any eventuality.

 

[vetagaadu]

Feel free to email me on cshanky@hotmail.com if you want to discuss further. I am in a similar situation and am getting prepared for any eventuality.

No one knows exact way how USCIS takes into account about this 180 day rule (since entry or since last entry)....

but see this post, user c514468 has same kind of problem and he got his approval....

http://www.immigrationportal.com/showthread.php?t=186865

as my point of view here is, they won't care if out of status is < 180 days anytime, but they care if it is morethan that.

if you know any details plz post here....

Thanks