PDA

View Full Version : IMP: Unlawful Status vs Unlawful Presence..


Bhadwaj
07-15-2010, 06:26 PM
Hello,

Here is my situation.

a) My I-485 is pending since Aug 2007. I am the beneficiary and my spouse is the primary.
b) The I-94 on my passport states its validity upto Aug 22, 2010. This was stamped using my earlier H1B which was valid upto Aug 2010.
c) I quit my H1B job on Nov 2008 and took another job using EAD. I think this may have invalidated my underlying H1B
d) I didnít apply for any extension of stay or change of status (COS) back in Oct 2008, becuase my I-485 was pending.
e) I have not travelled outside of the country since my last arrival.. (pls see #b)

Recently I came across a memo from USCIS wherein it tries to differentiate betweeen UNLAWFUL STATUS and ACCRUAL of UNLAWFUL PRESENCE. The memo is "Consolidation of Guidance concerning unlawful presence for purposes of sections 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(I) of the act".. and the example on page 9 states this.

"An alien is admitted as a non immigrant, with a form I-94 that expires on Jan 1, 2009. On Oct 5, 2008, he properly files for an application for adjustment of status. He does not, however, file any application to extend his non immigration stay, which expires on Jan 1, 2009. The AOS application is still pending on Jan 2, 2009. On Jan 2, 2009, he becomes subject to removal as a deportable alien under section 237(a)(1)(c) of the act because he has remained after the expiration of his nonimmigrant admission. For purposes of future admissibility, however, the pending adjustment application protects him from the accrual of unlawful PRESENCE

This example got me worried a lot. I am sure most of us always thought that since we have a EAD, we can leave H1 and get another job on EAD while I-485 is pending. I for sure wasn't aware that we are expected to file something to get an extension of stay or change of status.

Now, my questions to our experts are
1. Since I am within my I-94 expiry date., am I in lawful status?
2. Since my H1B (which was used for my I-94) may have been revoked, does it mean that I-94 which I have on my passport is invalidated?
3. I know I am not accruing unlawful presence because of AOS Pending.. but what about status?
4. What should I do now to correct ...? my I-94 expires in another month.

Please help!

gc28262
07-15-2010, 06:43 PM
This memo was discussed extensively on this forum in the past and many lawyers have given their opinion.

Summary: You don't need to worry. As long as you are on AOS, you are authorized to stay in the country irrespective of your I-94 expiry date.

Here is the memo

http://www.uscis.gov/files/nativedocuments/revision_redesign_AFM.PDF

Here is what Ron Gotcher said:
I don't care what the non-binding policy memo says, it can't trump a duly promulgated regulation. Indeed, I don't think that they were trying to do that. The problem stems from the fact that the policy memo is a lot of inarticulate babble and is very hard to decipher. In any case, it is a memo, not a statute or a regulation and it must bow in the face of a regulation with contradictory information.

Here is another link:
http://immigrationvoice.org/forum/506251-post13.html

Bhadwaj
07-15-2010, 08:48 PM
Thank you GC28262,

I also presume that there is no need to file I-539 either. However, what would be the right approach here..

File for H4, while she continues to work on EAD. The benefit with this approach is that she would have a new I-94
OR
File for AP - but then she won't have a new I-94 till such time that she reenters US.

Please advice.

gc28262
07-15-2010, 10:41 PM
Thank you GC28262,

I also presume that there is no need to file I-539 either. However, what would be the right approach here..

File for H4, while she continues to work on EAD. The benefit with this approach is that she would have a new I-94
OR
File for AP - but then she won't have a new I-94 till such time that she reenters US.

Please advice.

I am not a legal expert.

For one thing, nobody can have H4 and EAD together. When someone uses EAD, his/her H1/H4 is invalid. You need not worry about this. Myself and thousands of IV members are in the same situation. Once you are on AOS you need not worry about I-94.

The only way an AOS person can have an unexpired I-94 is when he/she maintains his/her H1B status also. A pure AOS person cannot have an unexpired I-94 all the time. So no need to be tense over this.

BTW my I-94 expired more than a year ago when I switched over to EAD.

EBGreenCard
07-16-2010, 01:01 PM
I personally think itís true specially for FB AOS applicants where no intermediate step like EAD and AP between visitorís visa and final approval. It may also be true for EB AOS applicants where EAD hasnít been issued and H1 extension hasnít filled.

gc28262
07-16-2010, 01:38 PM
I personally think itís true specially for FB AOS applicants where no intermediate step like EAD and AP between visitorís visa and final approval. It may also be true for EB AOS applicants where EAD hasnít been issued and H1 extension hasnít filled.

EAD - is work authorization. It is not a status document. You can be in this country without EAD if you are on AOS and not working. EAD is needed only if you are working.

AOS - AOS (I-485 pending) is a status in itself. This status allows you to stay in the country irrespective of whether you have an EAD.