суббота, 25 июня 2011 г.

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  • saketkapur
    07-27 05:24 PM
    ImmInfo Newsletter "Unlawful presence" myths and realities (http://imminfo.com/Newsletter/2009-7/unlawful_presence.html)


    Unlawful Presence: Myths and Realities

    Ron Gotcher

    Recently, the USCIS released a new policy memorandum on the subject of �unlawful presence.� Because of its length and the poor quality of the writing, there has been a great deal of confusion resulting from it. We would like to clarify a few of the more egregious misunderstandings that have taken root as a result of this memorandum.

    A person who applies for adjustment of status while in lawful status, and thereafter allows his or her nonimmigrant status to expire is not going to be deported.

    The new memo makes it clear that when someone applies for adjustment of status, they are thereafter present with the permission of the Secretary of DHS. As such, they do not accrue unlawful presence even if their nonimmigrant status expires. While technically they may be subject to removal, the CIS does not attempt to remove them for a very practical reason. If the immigration service institutes removal proceedings against someone who is eligible for adjustment of status, that person will simply renew their application before the immigration judge. Immigration will have wasted a great deal of time and energy and accomplished nothing. There is no possible reason that would compel the immigration authorities to change their current policy and begin trying to remove people with valid pending adjustment of status applications.

    Nonimmigrants are not required to maintain their status after filing for adjustment of status.

    Some writers have said that AOS applicants must continue to maintain their nonimmigrant status after filing for adjustment of status. They are wrong. In many cases, attempting to do so would involve visa fraud and render the applicant ineligible to adjust status. Certain nonimmigrant categories, such as B, F, J, and M are �single intent� categories. If someone who is actively in the process of immigrating to the United States attempted to extend status in a category where they are required by law to have a good faith intent to leave the United States and return to their home country to resume their residence there, that would be an act of fraud. You can swear on the one hand that you intend to return to your home country immediately upon the expiration of your nonimmigrant status, while on the other continue to request permanent resident status in the United States. Filing this type of application would do positive harm to your case.

    It is not necessary to maintain H1B status after filing for adjustment of status, and in many cases doing causes harm to the applicant.

    There is really only one valid reason for an adjustment of status applicant to maintain H1B nonimmigrant status after filing for AOS. That is the situation where the H1B has a spouse or child who has not filed for AOS and requires an H4 visa in order to remain in the United States. Other than this situation, there is no valid reason for someone to try to maintain H1B status after filing for AOS.

    Maintenance of H-1B status is not without cost. The CIS filing fees are $320, plus $500 for the anti-fraud fee it is a first filing (such as an employer transfer), and $750 to $1,500 for the ACWIA fee. This does not include attorney�s fees. There are two other �costs� that must be counted as well. If you travel, you must have a valid H-1B visa to re-enter. This means that you may have expend time and money renewing your H visa. Also, with an H visa, you may not accept work from anyone other than your petitioning employer. Otherwise, you are in violation of your H status.

    Historically, I�ve heard three main arguments I�ve in favor of using H-1B. First, there is the �just in case� argument. To me, this falls into the �monsters under the bed� or fear of the dark kind of superstitious dread argument. �I don�t know what might happen, but I want to keep my H-1B just in case.� I�ve always felt that if you can�t articulate the reason for doing something, it isn�t a very good reason.

    The second reason is a concern that if the applicant�s I-485 is denied, the applicant can revert to H-1B status. I believe this to be a specious argument also. Most I-485 denials result from I-140 denials. If your I-140 has been approved, the odds of your I-485 being denied drop to almost zero. The two remaining reasons for I-485 denials are status violations prior to filing and fraud. Both of these reasons impact H-1B validity as well and if an I-485 is denied for either reason, it is doubtful that the applicant would be allowed to resume H-1B status.

    The third reason, and in my opinion the only valid reason, arises in unusual situations where the principal applicant has applied for adjustment of status but his or her spouse hasn�t. In such cases, it is essential that the principal applicant maintain H-1B status so that the spouse remains eligible for H-4 status.

    There is one other important consideration with respect to maintaining H-1B status while applying for adjustment of status (AOS). I�ve seen situations involving individuals who elected to stay in H status while applying for AOS and traveled abroad using their H visas and were laid off unexpectedly while abroad, or other saw their H petitioner go out of business suddenly. All were left high and dry overseas with no way to return to the US. If they tried to use their H visas, they would be guilty of visa fraud at entry and thus ineligible for adjustment of status.

    Finally, AOS applicants who have given up H status should understand that there is nothing to prevent them from re-applying for H classification should something go disastrously wrong with their AOS application. If the applicant is still eligible for H classification, there is nothing to prevent them from re-acquiring it later.

    Employment authorization documents (EAD) are presently valid for one year at a time, unless you have an approved I-140, in which case they will issue them for two years. Advance parole (AP) documents are presently valid for only one year. The EAD/AP combination provides an applicant with a simple, inexpensive alternative to trying to maintain H status while applying for AOS. More importantly, EADs give an applicant job flexibility. With an EAD, an AOS applicant who wishes to exercise his or her right to job portability need only show an EAD card in order to accept new employment immediately. Similarly, an applicant who travels and uses AP as a re-entry document need never bother with having to make an appointment and apply for a new visa while abroad.

    Finally, the CIS is now looking closely at the issue of unauthorized employment after filing for AOS. With an EAD, as long as you keep it current, it is impossible for you to engage in unauthorized employment. With an H1B, you are very strictly constrained by the LCA and H petition terms. If you or your employer deviate in any way, you risk violating your H status and thereafter engaging in unauthorized employment. The EAD path is far safer.

    Ron Gotcher


    Copyright � 2009 The Gotcher Law Group, PC - All Rights Reserved




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  • h12gc
    04-28 06:18 PM
    Hi guys,

    My details: EB2 NSC,Aug 2005 PD,1485 notice date: august 2nd 2007,140 approved,EAD valid till 2010 september.

    I got an RFE on my I 485 on April 15th asking for employment letter from intended permanent employer.Last month my employer cancelled my H-1 Visa, I think that trigerred this RFE.Currently I'm on EAD.So I don't think It will hurt my status.

    My Employer gave me the employment letter with same job title and duties as Labor certification.My Employer is an IT consulting firm.Currently I'm not on project with him.I'm benched for last few months.Since GC is future process he had issued employment letter.But Technically I'm with out pay stubs for few months.Does it hurt my GC process?

    Also I spoke to my employer and he said given current market situation I can find a similar job with any employer and use my EAD he has no problems in supporting my GC process since it is future employment.My question is Can I work on contract to w-2 positions with any recruiting firms and not to file AC 21 with them since I have already have an offer from my own GC sponsered employer?

    Can I take full time position with end client and not file AC 21 since I already have an offer letter from my current employer intending to hire me permanently once GC is approved.

    In present market situation I'm finding positions which are asking for con_w2 or fulltime positions with the end clients.No corp to corp positions in IT industry.

    Please any one advice me on this.

    Thanks
    h12gc




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  • rajivkumarverma
    10-16 07:18 PM
    Sorry to hear about ur denail .I've been through this .Unfortunately u cant fime MTR bacause it has to be within 30 to 33 days of denail depending how u get ur denail notice .U can file an apeal but that will take more time then filing a new 140 and getting spproval .I dont know if u can use old labour .If u can use old labout then better to file new 140 with approved labour .If u cant use old labout then apeal may be batter becaue more n more labours are goin to audit and endless delays .
    hope it helps .
    Hi Talash
    If I file my new labor and I-140 will I lose my old priority dates




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  • reedandbamboo
    09-14 10:37 AM
    Till now EB2 India has much to cover till 2006 and then it will move fast. Also it seems very few People actually filed for EB2 after 2006 knowing the wait. Though we have aroun 24000 Perm for India (EB2/EB3) combined for 2007. Needless to say that USCIS data is very much required for Predicting Priority dates accurately

    OR,

    it could be because 2007 & 2008 folks, not having waited as long as the pre-2007 folks, haven't had as much cause to seek reprieve..



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  • gcpain
    07-24 04:42 PM
    Thanks for clarification.




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  • chanduv23
    09-15 06:47 PM
    Do we have any guesstimate for the number of attendies for the rally?

    10000 is expected and more.

    Like a caller on radio said - we need 30,000 people and not 5000 people.

    People in Tri State and DC area - no excuse for not coming. Just one day of your lives. Just one day



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  • gogal
    11-03 03:49 PM
    Does anyone know the benefit to go for PIO or OCI... in relation to the Indian Baby born in US..


    Thankyou




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  • mnkaushik
    07-19 08:20 AM
    I am not entirely sure but there is a provision called "Follow to Join" that allows you to apply for spouse's 485, 6 months after your 485 is approved. The only condition you need to satisfy is that you should have married your spouse before your 485 approval date. Ask your lawyer about it. I think you should be fine. About legal status since your spouse's 485 is rejected and ur h1 is invaldiated due to your 485 approval, i dont know and you need to aks your lawyer about it.



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  • GC4US
    10-31 05:11 PM
    See my signature




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  • desi3933
    06-22 09:50 AM
    [QUOTE=desi3933][COLOR="Blue"]1. No, unless she goes out of country and re-enters US on H1 visa on or after Oct 1st


    As her I-94 is attached and COS if approved with H1B, Can she work on I-485-EAD/H4 from Aug 1 - Sept 30 and then work on H1B from Oct 1 - next 3 years from the same company?

    Please advise.

    I have answered this question in my last post (#1 in post). Here we go again --

    By working on EAD she will be on AOS Pending status. In order to change to H4 back again, she needs to go out of country and re-enter US on H1 visa on or after Oct 1st.

    Not a legal advice.
    -----------------------------------
    Permanent Resident since May 2002



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  • ksrk
    08-15 02:10 PM
    Thanks Krsk,

    My current AP expires on October 15th. So if I apply for AP renewal now, and the go out for H1B stamping in September. Lets say if for some reason my H1B doesn't get stamped/denied, and meanwhile I try to come back in USA on my current AP - Would this be a problem at POA..IO may cause problem that I don't have valid H1B and AP renewal is pending, and on the top - my current AP expires within next few weeks..

    What do you think..??

    Om

    Hey Omved,
    If I were you, I'd try getting the H1B stamp BEFORE the AP expires. So that, in the worst case (if H1B stamp gets rejected), you return on the still-valid AP. And you should be able to get visa appointments to Canada/Mexico (I haven't tried the latter) before Oct 15th - the short trip seems worth it.

    Of course, if H1B gets rejected and you haven't applied for AP renewal, then your India trip will need to be postponed...

    The other option is to take the risk, go to India and apply for H1B stamp. If that doesn't work, then wait for your AP renewal to come through (waiting in India till that happens), provided you have applied for the AP renewal BEFORE going to India.

    I honestly can't think of any other options...can you?

    -K

    DISCLAIMER - Not legal advice. Based on personal anecodes, opinions and preferences.




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  • santb1975
    05-17 11:03 PM
    34294$ more to raise. Let us do it



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  • bugmenot
    06-30 12:54 AM
    ofcourse a very good news...but at the same time if VB for next month is disappointing , what will be next plan of action.. to have SkILL bill or any way to have interim bills passed?

    i don't think its good news ,the failing of the bill just proves that the congress is still xenophobic(or only responsive to the xenophobic anti immi's) if the bill was to legalise 12M brits or other whites it would have sailed through..thats a fact and that speaks alot about this society we live in, coming to legal immi, u think they care? Sessions n all will be as venomous when it comes down to legal, they just used it as an excuse to clobber illegal immi , if he really cared he would not have obstructed the SKIL in dec 2006, its gonna get worse coz now the anti immi's have grown in strength and confidence , no bill helping legal immi is ever gonna pass, they might increase the h1b's a lil bit but will introduce tons of h1b/L1 killers so forget anything thats gonna help anybody in here now be it GC retro or whatever,




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  • bigboy007
    11-01 01:49 PM
    Couple of questions : I am planning to apply for EAD . I have already filed 485 on July 2 and got receipt no.s .

    1. where to file : Here is the catch when filing 485 i am in IL and later moved on to CT. I have updated all addresses etc to CT and everything fine. Since i was in IL for 485 I applied to NSC now i am in CT and here it is VSC for form EAD. So where should i send my application to NSC or VSC?

    2. Efile or regular : which is good efile or regular filing. I filing myself and requested attorney's view he said he would prefer normal way as its better and i can see checks cashing and make that a proof of receipt in case of reciept notice lost.

    Need ur views.



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  • crystal
    09-17 12:49 PM
    This will be a problem for all the people whose cases gets transfered from other centers to NSC or TSC. May be it is just the receipt date of transfer notice... Not the actual 485 application ? A clarification from USCIS would help




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  • Ivyleaf
    10-07 03:41 PM
    my votes for bat. reflections are my fav :beam:



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  • kevinkris
    07-10 05:33 PM
    Hi,

    My friend has this scenario and want expert advise from IV members.

    - On L1 for 3 1/2 years and H1 for 2 years 3 months. About to complete 6
    years in 3 months.
    - Filed Labor (approved. PD Aug 2004 EB3), I140 (applied in May 2007) and
    I485 (July fiasco)
    - I140 still pending

    Question:

    1. Does L1 period is counted for H1 extention?
    2. Can he do H1 transfer using AC21 without I140 approval?
    As 6 years are going to be expired?
    3. What if the old employer revokes his I140 now? His GC process is invalid?
    4. If we leave about GC, Can he do H1 transfer atleast?

    Thanks for your valuable suggestions.




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  • jeevarakkiannan
    07-17 06:19 PM
    I suggest we add our photos to the thank you letter. This way, the thank you letter will be more personal.

    What do you think?




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  • shankar_thanu
    07-30 08:03 PM
    Yes, EAD is bassed on the 485 you had filed. But it is very very risky to use the EAD even before I 140 is approved, since if by chance it is not approved or some very difficult query comes, and 140 doesnot get approved, you lose your H1 or L1 or whatever current status you are currently in, if you had begun using EAD(since the 485 is based on future approvablity of the 140 and once 140 gets denied, the 485 and EAD automaticaly gets denied)



    What exactly does it mean when you say "Use the EAD"? My H1 is valid for next 3 yrs and i dont want to use the EAD (hopefully I'll get it), how do I make sure I dont use the EAD. Does it cause confusion in port of entry when you have both a vlid H1 stamping and EAd and AP?


    thanks.




    freedom1
    01-19 04:19 PM
    Hi to all,

    This morning I received the e-mail message below.

    Does this means that an approval letter has been sent to me?

    Has anyone received such an e-mail?

    Thanks,

    Freedom1.

    -----------------------------------------------------------

    Application Type: I485, APPLICATION FOR STATUS AS A PERMANENT RESIDENT

    Current Status: Document OTHER THAN CARD manufactured and mailed.

    On January 19, 2007, we mailed the document we manufactured based on our earlier approval of this case, and mailed it to the address on we have on file. You should receive the new document within 30 days. If you do not, or if you move before you get it, call customer service.




    wam4wam
    09-21 11:45 AM
    i kept telling you guys since last week

    send faxes to congress /house...it is in the house where bills get structured.

    make sure u add only the SKIL bill...just remove cap for ppl with advanced us degrees...that was the only thing the house had agreed to consider


    but everyone on this forum ignored me

    no it might be too little too late

    i am not saying all i slost...atleast we got some action going amongst the members of this site


    it aint rocket science guys....think about it from the lawmakers point of view....would they allow for more immigration frindly reforms now....no way...so be ready to compromise and suggest the ones which are truly benefecial to the US economy....

    the bottom line was always...borders secure first..then talk about immigration reforms....

    for the coming seasons....we have to push for nothing but the SKIL bill

    that is the only bill that has hope


    the other glimmer of hope in all this is the house has inadverently left out the fact on how they are going to fund the building of the wall

    it is here that we step in...

    fees for filing I485 for people under SKIL

    fees for being able to file 485 before visa numbers

    etc etc etc


    we have to take advantage of this opportunity

    in the mean while....SEND FAXES ABOUT SKIL BILL



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