View Full Version : Will past H1B out of status infraction sabotage my EB2

05-09-2011, 10:57 PM
Hello everyone... looking for some advice here -

I have maintained 'lawful presence' in the US since 15 years. I went out of status on my H1B in April 2007 (note that my I-94 was still valid). In July 2007, I joined the ranks of the 'July filers' through my pending EB3 application and got on EAD/AP and have remained on this till present, traveling in and out of the country regularly almost 7-8 times every year. Now I have the opportunity to file EB2 and port my priority date. However, the concern being raised is that the out of status presence during April-June 2007 (3 months) may come up during review and cause major problems.

What's more, during those 3 months, I did travel in and out of the country 5 times, each time entering on the H1B.

At the time, I didn't realize this was a serious infraction because I was still working for the same company -- just as a contractor though instead of as an employee. I continue to work with the same company after all these years, but as a contractor, and in fact they are the ones who will file my EB2 application.

Anyway, I can't change the past. I understand that the more serious charge of unlawful presence is not applicable here, but I am concerned about how much damage the out of status presence can cause if I attempt the EB2 application now and wake the sleeping dragon. How high is the possibility that I am risking deportation and 3-month ban because of this? Does it count at all that my travel record has been clean for the last 4 years, albeit on EAD/AP?

Please advise.

05-10-2011, 10:11 AM
Only this: "Any alien who was unlawfully present in the United States for a period of more than 180 days but less than one year, ..., is inadmissible" for 3 years.


I don't think you have a problem at all.

05-10-2011, 10:25 AM
Thanks for your response. Sorry, that was a typo. I did mean 3-year ban.

05-13-2011, 02:06 PM
Is it true? "unlawful presence" is different from OOS, since you mentioned you have "lawful presence" in U.S. for many years in which only a 3-month period is OOS.