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illuminati
05-14-2008, 12:56 PM
I had been looking through lot of postings related with potential I-485 RFE on Approved I-140 in the future. Below is my case and need your valuable inputs.


PD : AUG 06 (EB2- India)
I-140 Approved (Nov-06)
I-485 (Did not apply during July07 as i wasnt married by then)

My labor was approved on BS+6 or MS+3 Years experience and so was my I-140. I do have 3 years experience and have letters to back it up.

Current Company: 4/17/2005 - Current company which holds my GC process.
Last company 04/15/2003 -- 4/15/2005 ( 2 Years Experience)
Last Last Company 04/01/2002 - -- 4/15/2003 (1 Year experience)


I finished up my Masters in (Aug 02) and applied my OPT but USCIS took their own sweet time to appove. My OPT EAD validity is from 11/2002-11/2003 and from there on I had been on H1B, but i worked voluntarily with my Last Last company (04/01/2002 -- 11/01/2002). I do not have paychecks till november 2002 and I graduated in May 2002. What are the chances that Approved I-140 will be scrutinized for work experience during I-485 AOS and what if they figure out that I was working for a period of 8 months without a valid EAD.

If a RFE does come up, can I show that I was working on CPT till Aug 02, but it still opens up (Aug 02 - Nov 02 3 months) timeframe. I have one year left on my H1 and i am worried with what would happen when I file for I-485 (God knows when)

One place which could be potential trouble is with G-325A Form, but it only looks back 5 years of employment history and I do not have to mention about last last company details. What is the 485 Standard opertaing procedure on Approved I-140?

Guru's please help and point me in the right direction. I was thinking of couple of things.

a) Move to a new employer , but port my old PD (I have good rapport with my current company and they can hold my I-140 without cancelling it) with same requirements. Get a new labor and apply I-140 (Risks ism PERM taking a quite a bit of time to approve)

b) Talk to my company attorney and see other possibilities. File new Labor based on MS+2 years vs MS+3 Years.

c) Am I worried too much and just relax?

kaisersose
05-14-2008, 01:10 PM
One of the main processing activities during the 485 phase is to check if the applicant has always been in status..not just for the past 5 years, but the entire time.

Many people have recently been issued RFEs from NSC to prove status from as far back as 1997 or when they first arrived as students with approval notices, copies of I-94s, and paystubs for each year of employment. If the applicant wase working illegally for a period less than 6 months, the lawyer may be able to pull it off. if it is more than 6 months, then it can get tricky.

The best thing to do at this time is to get the opinion of a experienced attorney.

CIS is very inconsistent and if you are lucky they will never even bother to read your documents in detail and send an approval.

illuminati
05-14-2008, 02:14 PM
Thanks Kaiserose for your valuable input. However, there is nothing trace of paystubs to check if i worked illegaly during period of 04/2002-11/2002. I have all my I-94's and other W-2's. The questions comes up if they go through my approved I-140 to check for any inconsistencies.

If they had to go through on my I-94's, I-20'S and other W2's or things, I am assuming nothing should show up.

slowwin
05-14-2008, 02:30 PM
I would imagine that USCIS would definitely cross check with I-140 for experience stated.
From USCIS perspective:
1) It seems that you have stated experience before you graduated. This would lead to ...2)
2) Were you authorized to work during your opt/cpt or graduation course ? was it off campus etc ?

If they find out that at stage explained in 2) you were not authorized to work off campus (whther full time or part time ), you could be in trouble.

Please consult an experienced attorney. Claiming experience which cannot be proved ( LEGAL status is the key here), is a BIG mistake and might have consequences.
Act ASAP.

------------------------------------
DISCLAIMER: This is my personal opinion. Not a LEGAL advise.

illuminati
05-14-2008, 04:01 PM
bump ^^

jchan
05-14-2008, 05:08 PM
During the time you were 'volunteering', did you actually CPT? If you did, I think you are fine. You can check the back of I-20 form, which should show the CPT's starting and ending time.

I had been looking through lot of postings related with potential I-485 RFE on Approved I-140 in the future. Below is my case and need your valuable inputs.


PD : AUG 06 (EB2- India)
I-140 Approved (Nov-06)
I-485 (Did not apply during July07 as i wasnt married by then)

My labor was approved on BS+6 or MS+3 Years experience and so was my I-140. I do have 3 years experience and have letters to back it up.

Current Company: 4/17/2005 - Current company which holds my GC process.
Last company 04/15/2003 -- 4/15/2005 ( 2 Years Experience)
Last Last Company 04/01/2002 - -- 4/15/2003 (1 Year experience)


I finished up my Masters in (Aug 02) and applied my OPT but USCIS took their own sweet time to appove. My OPT EAD validity is from 11/2002-11/2003 and from there on I had been on H1B, but i worked voluntarily with my Last Last company (04/01/2002 -- 11/01/2002). I do not have paychecks till november 2002 and I graduated in May 2002. What are the chances that Approved I-140 will be scrutinized for work experience during I-485 AOS and what if they figure out that I was working for a period of 8 months without a valid EAD.

If a RFE does come up, can I show that I was working on CPT till Aug 02, but it still opens up (Aug 02 - Nov 02 3 months) timeframe. I have one year left on my H1 and i am worried with what would happen when I file for I-485 (God knows when)

One place which could be potential trouble is with G-325A Form, but it only looks back 5 years of employment history and I do not have to mention about last last company details. What is the 485 Standard opertaing procedure on Approved I-140?

Guru's please help and point me in the right direction. I was thinking of couple of things.

a) Move to a new employer , but port my old PD (I have good rapport with my current company and they can hold my I-140 without cancelling it) with same requirements. Get a new labor and apply I-140 (Risks ism PERM taking a quite a bit of time to approve)

b) Talk to my company attorney and see other possibilities. File new Labor based on MS+2 years vs MS+3 Years.

c) Am I worried too much and just relax?

illuminati
05-14-2008, 05:46 PM
No. I do not have any work authorization for CPT before my graduation in Aug 2002. I wish I did that during that time. never realized that it's going to eventually bite me.

Now, I have been looking at 245(k) provision which allows alien to reset any unauthorized work for less than < 180 days. I also travelled out and came back to US 3 times on my H1B after this incident. However, my period is little more than 180 days. It's about 224 days. It however does indicate that the alien did not last more than 180 days since the latest admission to the United States.

Now my question to you Guru's is (I am going to talk with a Attorney at Fragomen and one other Immigration firm) am I eligible in this provision in the worst case if I did get a RFE on it. It's hard to interpret the legal language mentioned in 245(k).

Does 245(k) help me in anyway in case of a 485 query is triggered on experience?


Profile:

EB-2 India (Aug 06 PD)
I-140 Approved.
224 Days of unauth employment. (Apr 2002 - Nov2002). Between Graduation and OPT.
Been in status after 11/2002 - Current (Everyday so far)
Travelled out and came back to US ( 3 Times - I-94's and every other legal document)
No payroll run during unauth employment period.

jchan
05-14-2008, 06:18 PM
I am not a guru, but I suggest that you do not tell USCIS you were working on CPT at that time. If you said that without the document to support, it became fraudulent. At least based on my understanding, you are protect by 245(k), since you were not out of status for more than 180 days since last entry. But you definitely need to consult an attorney to be safe. Or you may want to send a PM to unitednations. He's very helpful on these matters.
Best of luck to you.

No. I do not have any work authorization for CPT before my graduation in Aug 2002. I wish I did that during that time. never realized that it's going to eventually bite me.

Now, I have been looking at 245(k) provision which allows alien to reset any unauthorized work for less than < 180 days. I also travelled out and came back to US 3 times on my H1B after this incident. However, my period is little more than 180 days. It's about 224 days. It however does indicate that the alien did not last more than 180 days since the latest admission to the United States.

Now my question to you Guru's is (I am going to talk with a Attorney at Fragomen and one other Immigration firm) am I eligible in this provision in the worst case if I did get a RFE on it. It's hard to interpret the legal language mentioned in 245(k).

Does 245(k) help me in anyway in case of a 485 query is triggered on experience?


Profile:

EB-2 India (Aug 06 PD)
I-140 Approved.
224 Days of unauth employment. (Apr 2002 - Nov2002). Between Graduation and OPT.
Been in status after 11/2002 - Current (Everyday so far)
Travelled out and came back to US ( 3 Times - I-94's and every other legal document)
No payroll run during unauth employment period.

illuminati
05-14-2008, 07:01 PM
Thanks JChan. As per your suggestion, I sent a PM to unitednations. I wish someone can break down 245(k) rule in layman terms and post it out.

rockstart
05-14-2008, 08:06 PM
I was always under impression that everything gets reset when you leave the country and come back and CIS just checks from your Last entry. Can some one please enlighten me if I am wrong.

illuminati
05-14-2008, 10:34 PM
bump ^^

amsgc
05-14-2008, 10:57 PM
Is unpaid (voluntary) work considered "unauthorized employment" ?

illuminati
05-15-2008, 01:08 AM
I guess it depends on how USCIS inteprets what is Voluntary work without pay. Guru's any more thoughts. I have a call with couple of attorney's tomorrow and monday. will keep you posted.

Based on my limited knowledge, one's unauthorized work or out of status is essentially reset from the last entry to US. This however is different if you already have applied I-485. You only have 180 days from the time of your last visit before you file 485 or if it's still in process.

Lastly, it all depends on mercy of USCIS as they have a right to deny the case in these situations. Honestly, I dont want to start all over again or move to a different job, but looks like I dont have much options.

rockstart
05-15-2008, 09:18 AM
Here is an old thread from IV where we had discussed it

http://immigrationvoice.org/forum/showthread.php?t=12839

slowwin
05-15-2008, 10:05 AM
illuminati,

I suggest strongly that you talk to an EXPERIENCED attorney in this matter. There are multiple issues involved here. 245(k) might alleviate your F1 illegal status. But there is also the issue of misrepresentation of facts/ fraud involved here. I am trying to help you here, no offense. USCIS may overlook this but also may not. If your 485 is denied because of this, then no matter what you do your future 485s will also be denied on that basis.

So talk to an attorney to see if, is it prudent to withdraw the AOS application. Ofcourse you do need to take care that you maintain your status otherwise and move on.

Thanks,
slowwin


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DISCALIMER: Not a Legal Advise.

illuminati
05-15-2008, 10:54 AM
Thanks Slowwin. I am already on it. One thing I dont understand when you say there is a fraud/facts misrepresented here. The work experience is still valid (I havent lied/misrepresented anything about it). Only issue I am seeing is potentially 8 months of unauthorized work during my F-1 Status.

If you are questioning on the legality of the work experience during that time, I think it's valid point and only a legal attorney can be a better person to answer that question.

Will keep everyone posted.

slowwin
05-15-2008, 11:22 AM
..Good luck!