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Retrogression, priority dates and Visa bulletins Issues surrounding the retrogression of the priority dates for the various employment based categories

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  #1  
Old 08-08-2008, 04:28 PM
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Default [Important] Unauthorized Work in between EAD Renewals

hello All,

Here is the recent Post from
http://www.immigration-law.com/Canada.html
Which Basically mentions that Work in between EAD's is illegal, Does that affect everyone who files their EAD renewals but would not get their EAD well in time before their Current EAD expires

- Does an Alien goes out of Status.
- Can he not work in between EAD Renewal.

What are the different options for those who are currently working as permanent employees using EAD's.



08/08/2008: Unauthorized Employment Before or/and after I-485 Filing and Importance of Revisit of Recently Released 245(k) Memorandum

A flood of foreign workers and their family members filed around this time last year the employment-based EB-485 applications along with or followed by filing of their ancillary applications of EAD and/or Advance Parole. Since the initial EAD was valid only for one year. these applicants are currently filing the EAD renewals en masse. However, some of these applicants are likely to face failure of receiving the renewed cards timely before the initial card expires for either the USCIS backlogs or security check issues. Those who face such gap should remember that the unauthorized employment will make them ineligible for I-485 approval unless they are eligible for the 245(K) relief. In this regard, the recently released 245(K) Memorandum was "very timely" particularly for the July 2007 VB fiasco filers of I-485 applications in that any period of unauthorized employment "after" filing of their I-485 applications is added and tacked on any period of their violation of nonimmigrant status and/or unauthorized employment which had been aggregated within six months "immediately prior to" filing of their I-485 applications since their "last admission to the U.S." For instance, if one filed I-485 applications with the record of less than six months of violation of nonimmigrant status and/or unauthorized employment immediately prior to filing I-485 application since the last admission to the U.S., he or she was eligible for I-485 application filing deespite their violation of the law. However, should the same applicant engage in unauthorized employment while they wait for the I-485 applications, he or she could exceed total of six months of violations when they aggregate the total period of violation prior to I-485 filing and "post" filing of I-485 application. Assuming the same individual accumulated overstay of I-94 for two months and unauthorized employment for two months resulting in total violation for a period of four months immediately before he or she submitted I-485 application, any unauthorized employment "after" filing and while waiting for I-485 application that exceeds two months will make him or her ineligible for I-485 approval. Close reading of the 245(K) Memorandum will tell such applicant that any employment between expiration of the current EAD and the renewed EAD is considered unauhorized employment for the purpose of 245(K) eligibility. Pending renewal application does not give the alien any employment authorization. Accordingly, should the extension of EAD be not received aftre the expiration of the initial EAD, he or she should immediately stop the work until the renewed EAD card is received to toll the running of click of clock of unauthorized employment and potential deadly consequences of ineligibility of the I-485 approval. This advisory applies only to those who work solely on the EAD rather than on a valid H-1B or L visa status.
This reminder is also very important for their employers in that continuing employment of these foreign workers after expiration of current EAD and before receipt of the renewed EAD will be considered the employer's practice of hiring unauthorized aliens in violation of I-9 rule. Consequently, we urge the employers and their I-485 applicant employees working on EAD to revisit and read carefully the 245(K) Memorandum to protect their interests and rights under the immigration laws. Enjoy your weekend!
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  #2  
Old 08-08-2008, 04:37 PM
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  #3  
Old 08-08-2008, 04:53 PM
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Dude, since you are a regular at Oh's, why don't you read all his previous posts on the subject?

The new USCIS memorandum makes it clear you can work upto 180 days altogether (weekends, holidays included) if there are gaps in EAD validity periods. If you go out of the country and come back on a visa such as H1/L1 the clock automatically resets. Travelling on AP doesn't reset the clock.

Read the USCIS memorandum, it's pretty clear on this. You should pay more attention to USCIS than Mathew "Doom and Gloom" Oh.

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  #4  
Old 08-08-2008, 05:05 PM
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Unhappy EAD expiring soon, renewal delayed.


My wifes EAD was filed on Aug05, Her current ead is expiring on oct09.
Although she is still working in H1, H1 is also expiring in sep30.

Whether its my mistake to follow or attorneys negligence, my wifes job is at stake.
Am afraid she may loose her job if renewed EAD is not in time.
She has not filed for H1 extn as she planned to work in EAD. (Her company must have been happy, cas they wont be spending on her)

I still wish any loopholes ..so my wife can continue working after H1/ead expiry until (may be couple of days) ead arrives.

I appreciate some suggestions/inputs from you all.

thanks.
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  #5  
Old 08-08-2008, 06:03 PM
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Quote:
Originally Posted by VMH_GC View Post

My wifes EAD was filed on Aug05, Her current ead is expiring on oct09.
Although she is still working in H1, H1 is also expiring in sep30.

Whether its my mistake to follow or attorneys negligence, my wifes job is at stake.
Am afraid she may loose her job if renewed EAD is not in time.
She has not filed for H1 extn as she planned to work in EAD. (Her company must have been happy, cas they wont be spending on her)

I still wish any loopholes ..so my wife can continue working after H1/ead expiry until (may be couple of days) ead arrives.

I appreciate some suggestions/inputs from you all.

thanks.
My suggestion speak to your lawyer ask straight and specific questions. However, if you feel dissatisfied speak to a different immigrant lawyer, spend $ on a consult even if you need too. At least you will get the right answer on what needs to be done further on. Don't wait for time to roll on.


Good luck,

Last edited by kumarc123; 08-08-2008 at 06:05 PM.
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  #6  
Old 08-08-2008, 06:06 PM
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There are various options you may want to consider and I would suggest talk to your lawyer about.

1. To my knowledge, EAD expiring does not mean loss of status. The EAD is simply for employment authorization, I don't think it is the document that governs immigration status. So your wife would be on AOS pending status once her H1 expires on Sep 30. But confirm this with someone more knowledgeable.

2. Once EAD expires, she should stop work immediately and not start until she gets new EAD. This is what I believe is the strict, and IMHO the right, approach. There are some who say upto 180 days is fine and so on, but I think there was a recent report on IV based on a newspaper account of a researcher whose AOS was denied because she worked after expiration of her EAD (even though her renewal application was pending, and her decision to continue came after university officials advised her). So one should tread carefully.

3. If her employment is at risk if she stops working for the interim period, then she can consider working WITHOUT PAY, such as like an unpaid intern. This may take care of the problem, BUT, and this is a BIG BUT, please confirm this with a lawyer.

4. Another possibility, she could take unpaid vacation. Again I would confirm this with lawyers.

Hope this helps.


Quote:
Originally Posted by VMH_GC View Post

My wifes EAD was filed on Aug05, Her current ead is expiring on oct09.
Although she is still working in H1, H1 is also expiring in sep30.

Whether its my mistake to follow or attorneys negligence, my wifes job is at stake.
Am afraid she may loose her job if renewed EAD is not in time.
She has not filed for H1 extn as she planned to work in EAD. (Her company must have been happy, cas they wont be spending on her)

I still wish any loopholes ..so my wife can continue working after H1/ead expiry until (may be couple of days) ead arrives.

I appreciate some suggestions/inputs from you all.

thanks.
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  #7  
Old 08-08-2008, 06:08 PM
sc3 sc3 is offline
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Quote:
Originally Posted by VMH_GC View Post

My wifes EAD was filed on Aug05, Her current ead is expiring on oct09.
Although she is still working in H1, H1 is also expiring in sep30.

Whether its my mistake to follow or attorneys negligence, my wifes job is at stake.
Am afraid she may loose her job if renewed EAD is not in time.
She has not filed for H1 extn as she planned to work in EAD. (Her company must have been happy, cas they wont be spending on her)

I still wish any loopholes ..so my wife can continue working after H1/ead expiry until (may be couple of days) ead arrives.

I appreciate some suggestions/inputs from you all.

thanks.
If she files H1 extension before Sept30 (expiry of current H1), then she can continue to work till 180 days after Sept30 while H1 extension is pending.
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  #8  
Old 08-08-2008, 06:17 PM
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Default

Quote:
Originally Posted by VMH_GC View Post

My wifes EAD was filed on Aug05, Her current ead is expiring on oct09.
Although she is still working in H1, H1 is also expiring in sep30.

Whether its my mistake to follow or attorneys negligence, my wifes job is at stake.
Am afraid she may loose her job if renewed EAD is not in time.
She has not filed for H1 extn as she planned to work in EAD. (Her company must have been happy, cas they wont be spending on her)

I still wish any loopholes ..so my wife can continue working after H1/ead expiry until (may be couple of days) ead arrives.

I appreciate some suggestions/inputs from you all.

thanks.
As this is an emergency, ask USCIS to expedite your wife's case, but I would wait atleast a month since the date of filing to make this request. Anyway, check the details here

http://immigrationvoice.org/forum/sh...864#post179864

Also, at the same time your wife could request her employer to file H-1 extension under premium processing (you may have to shell out $1000 from your own pocket).
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  #9  
Old 08-08-2008, 06:28 PM
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Expedite requests because of delayed application do not work with the USCIS.

Wait for a few weeks and keep your fingers crossed that the EAD will be approved in time. Sometimes they do send them out fairly quickly. IF you don't get it by mid Sept. then I think she will have to extend her H1b status. I believe that filing an extension with the receipt document is adequate but confirm that with the lawyer.

If the above is not possible then she can take a no pay leave of absence, basically make sure that she is not an employee for the dates she was not authorized to work, so no vacation time, no payroll no nothing. Basically fire and rehire through HR until her new EAD is granted. Not having EAD does not make her out of status, it only means she cannot work, her pending 485 gives her legal status so you are covered on that point.

If you want to take a chance and she continues work, the 245K probably protects her but, that would be a trickier scenario and you should plan that well with your lawyer.
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  #10  
Old 08-08-2008, 06:44 PM
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Red face Mmm..

Thanks guys for all your inputs.
I just thought of another idea, how about her just continuing work(consulting) and accumulating her pay after her ead expiry, but not receiving her paycheck from her desi company. We cud make a deal like receiving the paycheck after her ead arrives in the next coming month.

I just said it, but not sure if this could work out.
what do u think guys? is it ok to go for work in the premises, without pay?
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  #11  
Old 08-08-2008, 06:47 PM
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Default hello

This same idea i heard from one of my friends, check with lawyer about this.
Quote:
Originally Posted by VMH_GC View Post
Thanks guys for all your inputs.
I just thought of another idea, how about her just continuing work(consulting) and accumulating her pay after her ead expiry, but not receiving her paycheck from her desi company. We cud make a deal like receiving the paycheck after her ead arrives in the next coming month.

I just said it, but not sure if this could work out.
what do u think guys? is it ok to go for work in the premises, without pay?
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  #12  
Old 08-08-2008, 06:50 PM
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Quote:
Originally Posted by alterego View Post
Expedite requests because of delayed application do not work with the USCIS.

Wait for a few weeks and keep your fingers crossed that the EAD will be approved in time. Sometimes they do send them out fairly quickly. IF you don't get it by mid Sept. then I think she will have to extend her H1b status. I believe that filing an extension with the receipt document is adequate but confirm that with the lawyer.

If the above is not possible then she can take a no pay leave of absence, basically make sure that she is not an employee for the dates she was not authorized to work, so no vacation time, no payroll no nothing. Basically fire and rehire through HR until her new EAD is granted. Not having EAD does not make her out of status, it only means she cannot work, her pending 485 gives her legal status so you are covered on that point.

If you want to take a chance and she continues work, the 245K probably protects her but, that would be a trickier scenario and you should plan that well with your lawyer.

sorry Alterego, dint notice your reply for my thread. coincidentaly you have given an answer to my thoughts. mmmm.. well, let me c.
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  #13  
Old 08-08-2008, 06:54 PM
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Quote:
Originally Posted by VMH_GC View Post
Thanks guys for all your inputs.
I just thought of another idea, how about her just continuing work(consulting) and accumulating her pay after her ead expiry, but not receiving her paycheck from her desi company. We cud make a deal like receiving the paycheck after her ead arrives in the next coming month.

I just said it, but not sure if this could work out.
what do u think guys? is it ok to go for work in the premises, without pay?
No it is not Ok. It is illegal to work during the period you are not authorized to work, period.

The best alternative is to file for H1 extension (in case EAD doesn't come soon enough). The cost of which, the company has the bear. So I dont see why you should worry about going through hoops on the matter. Saving some bucks for the company is good ideals, but not at the cost of breaking laws to do it.
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  #14  
Old 08-12-2008, 04:02 PM
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Unhappy Be careful!

Folks I recommend that you read the document correctly before proceeding because -

The wording in the USCIS document specifically states that an "employee-employer relationship should not exist" during the period (between expiry of the old EAD and the date on the new EAD). This means that you should not even be on the payroll. So you should QUIT your job to strictly keep your status.

This is just one of the ways that USCIS screws with us.

Also, if you intend to use 245(k), it can cause problems for your employer.
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Old 08-12-2008, 04:09 PM
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This is a freaking serious issue...
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