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Old 07-19-2009, 11:59 AM
rabs rabs is offline
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Priority Date
:
Mar-05
Category
:
EB3
I140 Mailed Date
:
03/21/2007
Chargeability
:
India
Processing Stage
:
I-485
I485 Mailed Date
:
07/24/2007
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Join Date: Jul 2009
Posts: 16
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Quote:
Originally Posted by gc_dedo View Post
Posted on immigration-law.com

"Unlawful Status" for I-485 Applicant Failing to Maintain Nonimmigrant Status in the USCIS Consolidated Memorandum on "Unlawful Presence" Pushes Immigrants to Confusion and Edge

* Some employment-based immigrants have read "out of the context" the part of the USCIS recently released consolidated memorandum on unlawful presence that defines I-485 waiters not maintaining a nonimmigrant status as "unlawful status" and who are subject to removal proceeding, pushing themselves into confusion and fears. In fact, this part of the consolidated memorandum is nothing new in that all along it has been the law that the I-485 applicants who fail to maintain a nonimmigrant status and stay and work on EAD are not nonimmigrants and "not in status." Since an alien in "not in status" (unlawful status) can be subject to removal proceedings, there is nothing wrong with that part of the consolidated memorandum. However, these readers missed another part of the consolidated memorandum that states that because of prosecutorial discretion and related rules, such I-485 applicants are considered "in authorized to stay" (lawful stay). The language "in authorized to stay" not only means that the unlawful presence that triggers bar to admission is "tolled" but also means that such aliens will not be prosecuted for the unlawful status inasmuch as they are in a valid I-485 proceeding. Flip side of the coin of this law is that since such alien is not "in status," once I-485 application is denied, they lose the basis of the "in authorized to stay," and the government can initiate the removal proceedings unless the aliens depart from the country voluntarily. For the reasons, some I-485 applicants have strived to maintain a H or L visa status adamantly against the potential denial of I-485 applications, but it is completely different issue from current misunderstanding within the employment-based immigrant community that the government can start removal proceedings simply because their status is unlawful and they can be subjected to a forced removal from the country simply because they decided not to extend their nonimmigrant status pending I-485 applications. People should stop panicking on this issue.
When I checked this message in immigration-law.com, I found a new line added at the end.
"Those I-485 waiters who stay and work on EAD rather than H-1B or L-1 visa status should make it sure that they religiously extend their EAD and Advance Parole not to violate the conditions and eligibility for I-485 applications!"

This line was not before. Does it mean that we need to extend our AP even if we don't have any travel plans ?????

Experts please advise.
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