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  #1  
Old 04-22-2009, 01:47 PM
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Default I-485 RFE - Please Advice

I got an RFE on I-485 application.

I need to prove my legal status from sep 18th 2008 to oct 7th 2008.

I have I-797 approval from 10/01/2007 to 09/29/08 and 10/01/2008 to 09/30/2009.

There is one day missing in the status, that is 09/30/2008. Is this a big issue, what are my options? Please advice.
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  #2  
Old 04-22-2009, 05:13 PM
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That by itself wont be a huge issue.

More than that were you in status during this time (09/18 - 10/7)?
Do you have pay stubs to prove the status, in case if you were asked?

Most important is, not to be working unauthorized (even for a single day). So be careful in the material you provide for reply.

To me the RFE just seems like a regualr clarification type. But they may have some hidden purpose behind asking for this specific short period.

Quote:
Originally Posted by Libra View Post
I got an RFE on I-485 application.

I need to prove my legal status from sep 18th 2008 to oct 7th 2008.

I have I-797 approval from 10/01/2007 to 09/29/08 and 10/01/2008 to 09/30/2009.

There is one day missing in the status, that is 09/30/2008. Is this a big issue, what are my options? Please advice.
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  #3  
Old 04-22-2009, 05:57 PM
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My old EAD expired on sep 18th 2008 but got new one from oct 7th 2008. that is the reason they are asking for, even though I have EAD I never used it, I am on H1B. But the problem is because of company attorney, there is one day missing in H1 status. Can I show I-765 receipt as proof?


Quote:
Originally Posted by morchu View Post
That by itself wont be a huge issue.

More than that were you in status during this time (09/18 - 10/7)?
Do you have pay stubs to prove the status, in case if you were asked?

Most important is, not to be working unauthorized (even for a single day). So be careful in the material you provide for reply.

To me the RFE just seems like a regualr clarification type. But they may have some hidden purpose behind asking for this specific short period.
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  #4  
Old 04-22-2009, 08:33 PM
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Quote:
Originally Posted by Libra View Post
My old EAD expired on sep 18th 2008 but got new one from oct 7th 2008. that is the reason they are asking for, even though I have EAD I never used it, I am on H1B. But the problem is because of company attorney, there is one day missing in H1 status. Can I show I-765 receipt as proof?

It should not be a problem at all. You are covered under 245(K) which exempts violation of the status up to 180 days during one. Moreover your EAD and Pending I-485 status was kept you in the status.
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  #5  
Old 04-22-2009, 11:38 PM
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Quote:
Originally Posted by Libra View Post
I got an RFE on I-485 application.

I need to prove my legal status from sep 18th 2008 to oct 7th 2008.

I have I-797 approval from 10/01/2007 to 09/29/08 and 10/01/2008 to 09/30/2009.

There is one day missing in the status, that is 09/30/2008. Is this a big issue, what are my options? Please advice.
If you can prove that you did not work for that one day (sept 30, 2008), you are "in-status" as you are covered under AOS as far as staying in the U.S is concerned. But, working for that 1 day without work authorization is a different issue.

Did you travel outside the country after 10/01/08 and come back on H1B ( with "Admitted" stamp)? If so, you are pardoned for your "out-of-status" even if you did work on sep 30th.

If not, you are out of status for that 1 day which is still covered under 245k.

Your I-765 receipt (which I am assuming is the filing receipt) will not make you "in-status" as you cannot work until the EAD is approved (unlike H1B) which was 10/7/08.

Your pay-stubs will not prove anything without the underlying work authorization (EAD/H1B).

If you are indeed "out-of-status", prepare a reply with the help of a qualified attorney and be very careful on what documents you submit.
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Last edited by sunny1000; 04-23-2009 at 01:16 AM.
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  #6  
Old 04-22-2009, 11:39 PM
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If that is the case.
Just make sure that you didnt work on "Sep 30th", the one day you didnt had authorization to work, and you should be "clean". Give the H1B approvals, and show proof that you were working all days "except" that one day, and that is the "cleanest" approach.

They just want to make sure you didnt engage in "unauthorized employment".
Technically you were "NEVER" out of status, because on "sept 30th" you fell into an "adjustee" mode when you didnt hold an "H1 status". So no worries about "out of status".

Quote:
Originally Posted by Libra View Post
My old EAD expired on sep 18th 2008 but got new one from oct 7th 2008. that is the reason they are asking for, even though I have EAD I never used it, I am on H1B. But the problem is because of company attorney, there is one day missing in H1 status. Can I show I-765 receipt as proof?
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  #7  
Old 04-22-2009, 11:42 PM
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Be careful.
"Unathorized employment" is more serious than "out of status for a day".
Even if you are unable to provide proof that you didnt work for that one day, "NEVER" send something showing a clean proof of you being employed on that date.

And NO, "re-entry" doest pardon your "un-authorized employment" at any time.

If you are "unsure" contact a good attorney. If you dont send something "stupid" you are perfectly OK.

Quote:
Originally Posted by sunny1000 View Post
If you can prove that you did not work for that one day (sept 30, 2008), you are "in-status" as you are covered under AOS.

Did you travel outside the country after 10/01/08 and come back on H1B (Admitted stamp)? If so, you are pardoned for your "out-of-status" even if you did work on sep 30th.

If not, you are out of status for that 1 day which is still covered under 245k.

Your I-765 receipt (which I am assuming is the filing receipt) will not make you "in-status" as you cannot work until the EAD is approved (unlike H1B) which was 10/7/08.

Your pay-stubs will not prove anything without the underlying work authorization (EAD/H1B).

If you are indeed "out-of-status", prepare a reply with the help of an qualified attorney and be very careful on what documents you submit.
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  #8  
Old 04-22-2009, 11:53 PM
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Quote:
Originally Posted by morchu View Post
Be careful.
"Unathorized employment" is more serious than "out of status for a day".
Even if you are unable to provide proof that you didnt work for that one day, "NEVER" send something showing a clean proof of you being employed on that date.

And NO, "re-entry" doest pardon your "un-authorized employment" at any time.

If you are "unsure" contact a good attorney. If you dont send something "stupid" you are perfectly OK.

You are wrong....see this memo. It includes pardoning unauthorized employment upon re-entry. Hope this helps the OP in deciding how to respond to the RFE.

http://www.uscis.gov/files/nativedoc...k)_14Jul08.pdf
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Last edited by sunny1000; 04-23-2009 at 01:19 AM.
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  #9  
Old 04-23-2009, 01:39 AM
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I worked on that day without knowing that am not authorized to work, nobody knows until I got this RFE and I looked into the approvals. My client is State dept, there is every proof I worked on that day and got paid. I did not went out of country in 2 years.


Quote:
Originally Posted by sunny1000 View Post
If you can prove that you did not work for that one day (sept 30, 2008), you are "in-status" as you are covered under AOS as far as staying in the U.S is concerned. But, working for that 1 day without work authorization is a different issue.

Did you travel outside the country after 10/01/08 and come back on H1B ( with "Admitted" stamp)? If so, you are pardoned for your "out-of-status" even if you did work on sep 30th.

If not, you are out of status for that 1 day which is still covered under 245k.

Your I-765 receipt (which I am assuming is the filing receipt) will not make you "in-status" as you cannot work until the EAD is approved (unlike H1B) which was 10/7/08.

Your pay-stubs will not prove anything without the underlying work authorization (EAD/H1B).

If you are indeed "out-of-status", prepare a reply with the help of a qualified attorney and be very careful on what documents you submit.
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  #10  
Old 04-23-2009, 02:51 AM
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Quote:
Originally Posted by Libra View Post
I worked on that day without knowing that am not authorized to work, nobody knows until I got this RFE and I looked into the approvals. My client is State dept, there is every proof I worked on that day and got paid. I did not went out of country in 2 years.
Read the USCIS memo from my previous post as that gives an idea of how they adjudicate such issues.

I think USCIS will see this as only a technical violation which is no fault of yours, rather than an intentional one. Moreover, you are still covered under 245k for the 1 day unauthorized work.

Please note that I am NOT an attorney and you may want to consult one on this before replying to the RFE.
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Last edited by sunny1000; 04-23-2009 at 03:05 AM.
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  #11  
Old 04-23-2009, 03:03 AM
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tahnk you sunny.

Quote:
Originally Posted by sunny1000 View Post
Read the USCIS memo from my previous post as that gives an idea of how they adjudicate such issues.

To me, it sounds like a technical violation rather than an intentional one. Moreover, you are still covered under 245k for the 1 day unauthorized work. If I were you, I would simply submit the two I797s from H1B approvals to cover those days and not highlight the 1 day gap.

But, please note that I am NOT an attorney and you may want to consult one on this before replying to the RFE.
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  #12  
Old 04-23-2009, 04:17 AM
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Sunny,

See page 5 of the same memo you mentioned. it clearly states that

"In addition, an alien who works without authorization after filing for adjustment of status will not stop the clock by departing the United States and re-entering pursuant to a valid advance parole document."

But I think you brought up a valid point. There is still uncertainty in the memo. When they state "last lawful admission" I interpret that as "last lawful admission before filing AOS application" (because all you claims for AOS benefit is based on the date of filing and continuing from there). But I notice that it never clearly mentions that.
Similarly if "libra" used an H1B visa stamp to re-enter, while AOS is pending, that is a different scenario, and there is no clear mention about this scenario in that memo.



Quote:
Originally Posted by sunny1000 View Post
You are wrong....see this memo. It includes pardoning unauthorized employment upon re-entry. Hope this helps the OP in deciding how to respond to the RFE.

http://www.uscis.gov/files/nativedoc...k)_14Jul08.pdf

Last edited by morchu; 04-23-2009 at 05:01 AM.
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  #13  
Old 04-23-2009, 04:22 AM
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Still 1 day "unintentional" employment shouldnt create a big issue. Probably all USCIS want is a clear picture.

Now, on sep 30th, was your H1B extension application pending? I dont re-collect properly, but I think AC21 allows you to continue employment if your extension was pending during that time. You might want to check in that direction as well. I still wonder, how come the extension application was approved with a delay in time period. The only reason I can think is that the application was received by USCIS only on that date. But again USCIS may have made one day delay in noting the actual application received date. In that case, if you can prove that your H1B-extension application was properly "received and pending" in USCIS on sep 30th, you probably might be authorized based on AC21.

But again, you should consult an attorney, read through the full text of the memo sunny provided, read and understand 245(k) clearly, before sending reply.

In this scenario, what can cause an issue is a "wrongly formated" letter.
Thats why doing your home work is pretty important. (lawyers can make mistake also )

By the way, please check with attorney how to "invoke" 245(k). You may have to specifically add the law clause and frame a letter for that. I am not sure how you actually "invoke" 245(k).It may be automatic invokation also, since the memo mentions

"Thus, it is the responsibility of USCIS to determine section 245(k) applicability based on the evidence submitted in support of the adjustment of status application."


Quote:
Originally Posted by Libra View Post
I worked on that day without knowing that am not authorized to work, nobody knows until I got this RFE and I looked into the approvals. My client is State dept, there is every proof I worked on that day and got paid. I did not went out of country in 2 years.

Last edited by morchu; 04-23-2009 at 11:30 AM.
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  #14  
Old 04-23-2009, 12:51 PM
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Quote:
Originally Posted by morchu View Post
Sunny,

See page 5 of the same memo you mentioned. it clearly states that

"In addition, an alien who works without authorization after filing for adjustment of status will not stop the clock by departing the United States and re-entering pursuant to a valid advance parole document."

But I think you brought up a valid point. There is still uncertainty in the memo. When they state "last lawful admission" I interpret that as "last lawful admission before filing AOS application" (because all you claims for AOS benefit is based on the date of filing and continuing from there). But I notice that it never clearly mentions that.
Similarly if "libra" used an H1B visa stamp to re-enter, while AOS is pending, that is a different scenario, and there is no clear mention about this scenario in that memo.
That is for people who are "paroled" (parole is not lawful admission) and not for the ones who are "admitted". If you are "admitted" (like a H1b/L1 entry stamp), which is the lawful admission, your clock resets, which the doc clearly states.
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Last edited by sunny1000; 04-23-2009 at 12:55 PM.
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  #15  
Old 04-26-2009, 02:40 AM
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I do not think the "1 day" is a problem.

I am guessing your attorney filed for the 10/01/08 petition before 10/01. That means you are authorized to work for that new employer from the day you file (receipt notice date) with the USCIS. As long as the the petition filed for 10/01 start date was a bonafide pending petition, the 1 day gap might just be a procedural error on the part of the attorney/USCIS that should not create a problem for you.




Quote:
Originally Posted by Libra View Post
I got an RFE on I-485 application.

I need to prove my legal status from sep 18th 2008 to oct 7th 2008.

I have I-797 approval from 10/01/2007 to 09/29/08 and 10/01/2008 to 09/30/2009.

There is one day missing in the status, that is 09/30/2008. Is this a big issue, what are my options? Please advice.
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