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Out of status, employment gap and status revalidation Gap in employment(paystubs) and the resulting problems during status transfer and green card filing.

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  #1  
Old 08-29-2008, 03:31 PM
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Default Out of status question

Good AM,

I was employed by a startup company between 2002 - 2004, out of which I only got paid for the last 6 months. I have pay stubs and checks since 2004. My I-94 was never expired and I had changed jobs twice since then.

My current employer has sponsored by Green Card. My labor and 140 is approved and 485 is pending. I never exited and entered the country after my first initial entry.

My questions are;

1. Will I be considered out of status between 2002 - 2004 by CIS?

2. If yes, If I go out of the country and come back would I be fine? I have heard that if I go out of the country and enter back again then CIS will only look at documents post that date. Is that correct even if I use AP to enter? or do I have to enter using H-1b?

Please advice
sam
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  #2  
Old 08-29-2008, 03:50 PM
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Quote:
Originally Posted by arulz View Post
1. Will I be considered out of status between 2002 - 2004 by CIS?

2. If yes, If I go out of the country and come back would I be fine? I have heard that if I go out of the country and enter back again then CIS will only look at documents post that date. Is that correct even if I use AP to enter? or do I have to enter using H-1b?

sam
1. Yes you will be considered out of status.
2. You cannot remedy that after filing 485. You should have gone out and come back in before filing 485. Your only hope is for USCIS not to RFE your 485.
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  #3  
Old 08-29-2008, 03:55 PM
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Originally Posted by fromnaija View Post
1. Yes you will be considered out of status.
2. You cannot remedy that after filing 485. You should have gone out and come back in before filing 485. Your only hope is for USCIS not to RFE your 485.
>> You cannot remedy that after filing 485.
Incorrect.

245(k) checks for status violations since last legal entry BEFORE I-485 approval. Please consider re-entering US on H1 status and 245(k) should cover you.

Please check this with your attorney and I hope your attorney is very good.

*** This is not a legal advise ***


____________________________________
Proud Indian-American and Legal Immigrant
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  #4  
Old 08-29-2008, 04:07 PM
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Default New 245 K memo

Quote:
Originally Posted by arulz View Post
Good AM,

I was employed by a startup company between 2002 - 2004, out of which I only got paid for the last 6 months. I have pay stubs and checks since 2004. My I-94 was never expired and I had changed jobs twice since then.

My current employer has sponsored by Green Card. My labor and 140 is approved and 485 is pending. I never exited and entered the country after my first initial entry.

My questions are;

1. Will I be considered out of status between 2002 - 2004 by CIS?

2. If yes, If I go out of the country and come back would I be fine? I have heard that if I go out of the country and enter back again then CIS will only look at documents post that date. Is that correct even if I use AP to enter? or do I have to enter using H-1b?

Please advice
sam
Pl read new 245K memo. I think you should be fine.
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  #5  
Old 08-29-2008, 04:12 PM
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Default 245 k

Thanks for the prompt response.

BTW; is there a 180 days clause in 245K memo?

thanks
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  #6  
Old 08-29-2008, 04:23 PM
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Okay, here is complete quote of Section 245(k).

Quote:
An alien who is eligible to receive an immigrant visa under paragraph (1), (2), or (3) of section 203(b) (or, in the case of an alien who is an immigrant described in section 101(a)(27)(C) , under section 203(b)(4) ) may adjust status pursuant to subsection (a) and notwithstanding subsection (c)(2), (c)(7), and (c)(8), if--


(1) the alien, on the date of filing an application for adjustment of status, is present in the United States pursuant to a lawful admission;


(2) the alien, subsequent to such lawful admission has not, for an aggregate period exceeding 180 days--


(A) failed to maintain, continuously, a lawful status;

(B) engaged in unauthorized employment; or

(C) otherwise violated the terms and conditions of the alien's admission.
Note reference to "on the date of filing". As far as I know status violation will be checked on the date of filing through to approval. However, if I-485 SOP only checks for status violation on date of approval, I am not sure of that.

In any case I am not a lawyer and I would advise the OP to consult his lawyer.
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  #7  
Old 08-29-2008, 04:29 PM
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Default Not Correct

Extract from Murthy.com

Section 245(k) enables a person who is adjusting status in an employment-based category (whether on the basis of a labor certification or in one of the special Green Card categories that does not require a labor certification or job offer) to adjust, even if s/he has been out of status or worked without authorization for less than 180 days. This provision does not require an immigrant petition or labor certification to have been filed on or before any particular date and there is also no penalty fee involved.


But the OP was out of status for nearly 1.5 years. I am not sure if this can be done. If you got out and come into the country and then withdraw your 485 and then refile I suppose you should be fine. I am not sure about your category as well. Just what i think may be wrong as well.
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  #8  
Old 08-29-2008, 04:29 PM
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Default I stand corrected.

Okay, again after reading the 245(k) Memo recently issued by USCIS, I can say that you may be fine if you go out and come back in using H1B. Note: do not use AP to reenter. However the memo only alluded to not more than 180 days out of status, so you may want to talk with your lawyer about this.

http://www.uscis.gov/files/nativedoc...k)_14Jul08.pdf
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"All the problems we face in the United States today can be traced to an unenlightened immigration policy on the part of the American Indian."
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Last edited by fromnaija; 08-29-2008 at 04:32 PM.
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  #9  
Old 08-29-2008, 04:43 PM
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Default 245 (k) -

Quote:
Originally Posted by arulz View Post
Thanks for the prompt response.

BTW; is there a 180 days clause in 245K memo?

thanks
New 245 (K) says - " A period of unlawful status found to result only from a “technical violation” or through no fault of the applicant, as described in 8 CFR 245.1(d)(2), does not invoke the 245(c)(2) bar. Thus, such period does not count against the 180-day period. "

Can someone interprete it ?
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  #10  
Old 08-29-2008, 04:52 PM
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Quote:
Originally Posted by arulz View Post
Good AM,

I was employed by a startup company between 2002 - 2004, out of which I only got paid for the last 6 months. I have pay stubs and checks since 2004. My I-94 was never expired and I had changed jobs twice since then.
sam

........................
Please note that there is a risk of visa application being rejected by the consulate officer. Consulate will ask for the tax returns and W2s for all the years you have been in US.

Is there a better way to get out of this situation ? I don't think so.

Anyways check with an attorney.
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