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  #16  
Old 12-20-2007, 05:31 PM
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Default

Quote:
Originally Posted by tabletpc View Post
Have you been out of country anytime after this...??If yes then you are fine.

Once you re-enter US..all previous records will be cleared....!!!
Yes, I did. In fact, many times.
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  #17  
Old 12-20-2007, 05:42 PM
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..Yes, I did. In fact, many times...""

Then go have blast tonight...you are perfectly fine. Atleast now can we laugh..!!!!
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  #18  
Old 12-20-2007, 05:54 PM
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Default Lookup section 245(K)

Please lookup 245(k).

http://www.law.cornell.edu/uscode/ht...5----000-.html

Quote:
(k) Inapplicability of certain provisions for certain employment-based immigrants

An alien who is eligible to receive an immigrant visa under paragraph (1), (2), or (3) of section 1153 (b) of this title (or, in the case of an alien who is an immigrant described in section 1101 (a)(27)(C) of this title, under section 1153 (b)(4) of this title) may adjust status pursuant to subsection (a) of this section and notwithstanding subsection (c)(2), (c)(7), and (c)(8) of this section, 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.
So basically if you are applying for employment based immigration adjustment of status(meaning I-485) under EB1 EB2 or EB3, (that's what they mean by paragraph (1), (2), or (3) of section 1153 (b) in the above text), and if you have not voilated status for over 180 days after your last legal entry into USA, and if you were in legal status at the time of applying for 485, then you may adjust status.

Now, a really good idea would be that you disclose this whole thing at the time of filing 485 and also claim the benefit under section 245(k). Since its apparent that you have not done it, I would advise to leave it alone and dont dig up old graves.

Consult an attorney for further advise, but dont go overboard in being Raja Harishchandra (the chronic truth teller) because frankly USCIS may not care about this and you can always claim the benefit under section 245(k).

However, if USCIS finds out about this (which is very very unlikely) and if the officer is a very strict person, then they may create a case of wilful misrepresentation. That's because on form I-485, it says that "have you ever been out of status or illegal and if so, provide details". In that question, if you didnt disclose your past history of being out of status ( I am assuming you were out of status and not illegal) then basically, in theory, they can say that you wilfully misrepresented (basically lied to them) by hiding this.

One option is to file an amendment to your I-485 and disclose this fact. That way, atleast they cannot make a case of wilfull misrepresentation. Nonetheless, remember, for them to find this out (about you not working and sitting at home) is difficult. Unless they somehow ask for your W-2 and paystubs for past 6-7 years and in that case it will be very easy for them to see that you were not working for 1 year.

Consult an attorney and tell the attorney all the details. I am not a lawyer and you should always ask a lawyer for legal advise.
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Status : I-485 pending, PD Nov 2004, EB3 - India.
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Religion is an insult to human dignity. Without it you would have good people doing good things and evil people doing evil things. But for good people to do evil things, that takes religion.
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Last edited by logiclife; 12-20-2007 at 06:39 PM.
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  #19  
Old 12-20-2007, 06:23 PM
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Quote:
Originally Posted by prioritydate View Post
Folks, I didn't worked for an year(2001) due to, you know what I am saying....

Now I am afraid that I would get an RFE because of that. Do you think that I need to worry about it?
Hey, are you from Andhra pradesh?
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  #20  
Old 12-20-2007, 06:39 PM
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Quote:
Originally Posted by prioritydate View Post
Yes, I did. In fact, many times.
If you were not laid off, it is fine. Technically you are out of status only when you are laid off. If company didn't pay you that is probably an issue for the company not you.

If you traveled out and came back to US with a proper visa stamping, your old "wrongdoings" are pardoned. That is what 245(k) is all about. If you are not filing your GC through the same employer, you are even better off.


Relax !
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Last edited by gc28262; 12-20-2007 at 06:41 PM.
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  #21  
Old 12-20-2007, 06:50 PM
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Default Yes and no

Quote:
Originally Posted by gc28262 View Post
If you were not laid off, it is fine. Technically you are out of status only when you are laid off. If company didn't pay you that is probably an issue for the company not you.

If you traveled out and came back to US with a proper visa stamping, your old "wrongdoings" are pardoned. That is what 245(k) is all about. If you are not filing your GC through the same employer, you are even better off.


Relax !
Your first paragraph is wrong. If you are not working, then you are out of status. Regardless of whether your employer formally terminated employment and formally cancelled your H1B. Out of status means staying in USA legally, but not doing what you are supposed to be doing. If you dont attend classes and go to college when on student visa, you are out of status even though you are legally present.

Your second paragraph, about "old wrongdoing" being pardoned, yes, 245(k) would clear that. However, if he had disclosed it, then yes, he would be in the clear.

Now keep in mind that everyone, goes out of job once in a while and is unemployed for 10-15 days or even a month during the course of time. Technically, that is out of status. But that doesnt mean everyone discloses it in their 485 form. Does that mean that everyone will get rejected ?
__________________
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Status : I-485 pending, PD Nov 2004, EB3 - India.
--------------------------------------------------
Religion is an insult to human dignity. Without it you would have good people doing good things and evil people doing evil things. But for good people to do evil things, that takes religion.
- Steven Weinberg, Nobel Prize winning physicist.
--------------------------------------------------
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  #22  
Old 12-20-2007, 06:58 PM
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.

Last edited by venky08; 01-11-2008 at 03:07 PM.
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  #23  
Old 12-20-2007, 07:02 PM
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Default

I was under the impression that 10 - 15 days gap or 1 month gap can be justified as vacation or sick leave as long as "employer - employee " relations exists (not terminated by the employer). One whole year cannot be justified under this.
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  #24  
Old 12-20-2007, 07:25 PM
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Man. I laughed bcos u really made me laugh and I thank you for that.. especially after the recent omnibus fiasco...u know what I am saying..

any way .. my thinking is that since you have already gone thru other earlier stages and they check things at that shatte also so ..at yr 485 stage..you shud be good..so relax and njoy donot worry and also even if you worry...nothing is going to change so relax and make your family also relax as your tension will pass on to them as well...

Just njoy and be happy as I have realised being happy wards off many unwanted things which we never know might have come our way due to being depresssed...

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  #25  
Old 12-20-2007, 08:03 PM
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Default

Quote:
Originally Posted by logiclife View Post
Please lookup 245(k).

http://www.law.cornell.edu/uscode/ht...5----000-.html



So basically if you are applying for employment based immigration adjustment of status(meaning I-485) under EB1 EB2 or EB3, (that's what they mean by paragraph (1), (2), or (3) of section 1153 (b) in the above text), and if you have not voilated status for over 180 days after your last legal entry into USA, and if you were in legal status at the time of applying for 485, then you may adjust status.

Now, a really good idea would be that you disclose this whole thing at the time of filing 485 and also claim the benefit under section 245(k). Since its apparent that you have not done it, I would advise to leave it alone and dont dig up old graves.

Consult an attorney for further advise, but dont go overboard in being Raja Harishchandra (the chronic truth teller) because frankly USCIS may not care about this and you can always claim the benefit under section 245(k).

However, if USCIS finds out about this (which is very very unlikely) and if the officer is a very strict person, then they may create a case of wilful misrepresentation. That's because on form I-485, it says that "have you ever been out of status or illegal and if so, provide details". In that question, if you didnt disclose your past history of being out of status ( I am assuming you were out of status and not illegal) then basically, in theory, they can say that you wilfully misrepresented (basically lied to them) by hiding this.

One option is to file an amendment to your I-485 and disclose this fact. That way, atleast they cannot make a case of wilfull misrepresentation. Nonetheless, remember, for them to find this out (about you not working and sitting at home) is difficult. Unless they somehow ask for your W-2 and paystubs for past 6-7 years and in that case it will be very easy for them to see that you were not working for 1 year.

Consult an attorney and tell the attorney all the details. I am not a lawyer and you should always ask a lawyer for legal advise.
Thanks for the clarification, Logiclife. I enter U.S in the first week of Feb, 2001. The economy was bad and I didn't manage to get a job. In fact, I didn't managed to get a job for a year. My then employer didn't revoked my H1B and the I-94 was valid until Oct, 2002. I didn't know that I was out of status till now. I don't remember seeing any section in I-485 form, asking for information about out of status. I did attach my previous H1-B approval notice(2000 -2002) while filing I-485. One thing I want to know is, did anyone got a query(RFE), asking to provide all W2 forms since their entry into this country? I am interested to know that.
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  #26  
Old 12-20-2007, 08:05 PM
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Default

Quote:
Originally Posted by bala50 View Post
I was under the impression that 10 - 15 days gap or 1 month gap can be justified as vacation or sick leave as long as "employer - employee " relations exists (not terminated by the employer). One whole year cannot be justified under this.
What would you do if no one is calling for an interview? It is not like I didn't managed to get a job. Nobody called me for an interview. At least, the Desi consulting company that I have joined, didn't managed to arrange an interview.
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  #27  
Old 12-20-2007, 08:09 PM
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Default

Quote:
Originally Posted by prioritydate View Post
Thanks for the clarification, Logiclife. I enter U.S in the first week of Feb, 2001. The economy was bad and I didn't manage to get a job. In fact, I didn't managed to get a job for a year. My then employer didn't revoked my H1B and the I-94 was valid until Oct, 2002. I didn't know that I was out of status till now. I don't remember seeing any section in I-485 form, asking for information about out of status. I did attach my previous H1-B approval notice(2000 -2002) while filing I-485. One thing I want to know is, did anyone got a query(RFE), asking to provide all W2 forms since their entry into this country? I am interested to know that.
Now I am really afraid. G-325 form has section to provide last 5 jobs. Since I had a gap, I didn't provide the details for the year 2001. I am royally screwed now!
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  #28  
Old 12-20-2007, 08:14 PM
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Default Have a question about myself

I filed my 485 in July, got EAD, AP. My attorney applied for my 7'th year H1 extension in July as well and he recommends me to go for H1 stamping while my AOS is pending. He told me I can come back using my AP and extend my H1 next year if necessary but he still recommends I get stamping done. I have a situation described below. Does anyone here think I might run into issues with the US consulte in Chennai.

I used to work a small consulting company before. I always had a Job, worked for big clients, found my projects myself. I had lot of issues with the company inspite of being on big projects all the time like my paycheck always arrived 3- 6 months late, my travel expenses got reimbursed after 3 - 6 months, company did not file for labor for an year and half where as I was told the process started and Labor has been filed. There was a time when I met with an accident and ended in the emergency room and found out that my medical insurance was not active which really stressed me out. I could not work for 6 weeks then. I have supporting evidence from the hospital to prove all this. I went back to the clients place after 6 weeks, started looking for a new Job while working on the project, quit my old company after 3 months and started a new Job. I transfered my H1, started my GC process all over. My old company did not pay me for the medical expenses, did not pay me for the 6 weeks and 3 months after and cancelled my H1 after I left them. I reported to DOL and DOL told me the company has agreed they did not pay me and my payments will be send out but they cant help you with the medical bills I had to pay. That was a 20,000$ hospital bill. To date I have not received any payments. I called DOL and they said the company is not in a great financial shape and they are trying to workout something like 2 weeks ago. DOL sent me an email that the case is still in progress and the consulate can contact them with any questions, I have experience letters from all my clients stating that I was working at their place all the time. Please advice
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  #29  
Old 12-20-2007, 08:14 PM
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Default Yes

Quote:
Originally Posted by prioritydate View Post
Thanks for the clarification, Logiclife. I enter U.S in the first week of Feb, 2001. The economy was bad and I didn't manage to get a job. In fact, I didn't managed to get a job for a year. My then employer didn't revoked my H1B and the I-94 was valid until Oct, 2002. I didn't know that I was out of status till now. I don't remember seeing any section in I-485 form, asking for information about out of status. I did attach my previous H1-B approval notice(2000 -2002) while filing I-485. One thing I want to know is, did anyone got a query(RFE), asking to provide all W2 forms since their entry into this country? I am interested to know that.
Ok, yes, I think you're right. On 485, it doesnt ask about whether you were out of status in the past or not. Its on 485 supplement A , which is used only if you are applying for adjstment of status under section 245(i). Obviously you havent applied under 245(i) as the deadline for 245(i) was April 30 2001 and that is a history now.

Ok, so great. They havent asked and so there is no wilful misrepresentation. In that case, just stay put and hope that they dont find out.

Regarding the chances of them asking for w-2 and paystubs, I honestly dont know, but it is not rare.

If they ask for last 3 years or last 4 years of W-2 or paystubs, then you are fine, because your out-of-work period is ancient history now.
__________________
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Status : I-485 pending, PD Nov 2004, EB3 - India.
--------------------------------------------------
Religion is an insult to human dignity. Without it you would have good people doing good things and evil people doing evil things. But for good people to do evil things, that takes religion.
- Steven Weinberg, Nobel Prize winning physicist.
--------------------------------------------------
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  #30  
Old 12-20-2007, 08:18 PM
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Default

Quote:
Originally Posted by logiclife View Post
Your first paragraph is wrong. If you are not working, then you are out of status. Regardless of whether your employer formally terminated employment and formally cancelled your H1B. Out of status means staying in USA legally, but not doing what you are supposed to be doing. If you dont attend classes and go to college when on student visa, you are out of status even though you are legally present.

?
I am not convinced about this part. Do you have any link to some USCIS rule/document regarding this ?
As per my understanding H1B employee becomes "out of status" when the employer-employee relationship cease to exist ( laid off )
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Last edited by gc28262; 12-20-2007 at 08:24 PM.
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