Discussion about "Status" of Pending AOS Applicants & Denial of I-485 (Technical)
Question to all the people who filed in previous years.
I have always heard that it is better to continue working on H1.
Can some one explain why ?
What happens when a person is working on EAD and
- He has to change jobs
- He gets a denial for I-485 application
- What status is the spouse on. I mean what would be her visa status (Not H4 for sure)
- What status is the primary on (Not H1 for sure)
You answered the question yourself....sort of. Once you work on EAD for a different employer, your H1 is invalid and your legal status is "pending adjustment of status". Since ur h1 is not valid, consequently any h4 is invalid. A denial immediately puts u out of status. There might be some relief while appealing the decision. However if you had a h1, you would still be in a legal status. My advice to all is to maintain your h1b if possible.Originally Posted by Jagan01
Jagan,
I'll have a stab at answering. It only really becomes an issue if the I-485 is denied.
When a person uses the EAD, they lose H1B status and rely on the period of authorized stay granted while the I-485 is pending.
It is important to note that "authorized stay" is NOT lawful status.
In the event that the I-485 is denied, USCIS will count all the time in authorized stay as time out of status towards that allowed by 245(k). This can mean that the person has exceeded the 180 days allowed and is not eligible to immediately file a new I-485 without first departing the USA and being admitted upon their return in legal status (e.g. H1B).
This was reaffirmed by the courts as recently as 2013 in Chaudhry v. Holder. Here's a couple of articles about the case. Article 1 Article 2 Note that 8 U.S.C. § 1255(k) is another term for 245(k).
USCIS can only count days towards the 180 day 245(k) limit since the last admission to the USA before the I-485 is filed.
If the person is using EAD, they would presumably use AP for any travel outside the USA. It is also important to note that being paroled into the USA does not count as an admission to the USA as far as USCIS is concerned for 245(k) (theoretically the person never left the POE), so that does not rest the 245(k) clock. From the 245(k) Memo:
As an interesting side note, one of the above articles suggests that the judges thought that a parolee may be "legal status", but this was not decided as the question never arose. 8CFR 245.1 (d)(1)(v) suggests a parolee is in lawful immigrant status:The guidance below describes the periods of time to be examined for purposes of
calculating time against the 180-day period.
• The adjudicator must only examine the period from the date of the alien’s last lawful admission to the United States and must not count violations that occurred before the alien’s last lawful admission.
• An alien, however, who entered the United States pursuant to an advance parole document is not "lawfully admitted", because the parole is not a final act with respect to admission. Thus, reentry based on a parole or advance parole does not start the clock over for the purpose of section 245(k).
Sorry for the diversion.(d) Definitions --
(1) Lawful Immigration Status. For purposes of section 245(c)(2) of the Act, the term "lawful immigration status'' will only describe the immigration status of an individual who is:
(v) In parole status which has not expired, been revoked or terminated;
To answer your questions:
It is interesting to note that the period of authorized stay while an I-485 is pending is granted solely by virtue of USCIS policy. It can be found nowhere in either the INA or 8CFR. From time to time, CBP and ICE have been known to disagree with this policy and treat people as out of status and removable. This is very rare and not something to worry about. There was a very good article on this subject, but I cannot currently find it (which is very annoying).What happens when a person is working on EAD and
- He has to change jobs
They present the EAD as proof of employment authorization to the new employer.
- He gets a denial for I-485 application
Dealt with above.
- What status is the spouse on. I mean what would be her visa status (Not H4 for sure)
If the spouse is relying on a derivative staus such as H4, they would lose that status when the primary uses EAD. If they also have a pending I-485 then they also enter a period of authorized stay. If they have no pending I-485, they would be out of status. If the spouse has their own independent status (e.g. H1B or L1), then they would not be affected by the primary using EAD.
- What status is the primary on (Not H1 for sure)
The primary would lose H1B status when they use the EAD and enter a period of authorized stay while the I-485 remains pending.
Without an irritant, there can be no pearl.
We always hear this question. What if my I-485 is denied ?
What are the chances of I-485 getting denied ? Chances are very remote. If there was any chance, we would already know. Once of my friends worried his I-485 would be denied because he got involved in a DUI incident. He kept on worrying about it until he got his GC. Of course he had a face-to-face interview with immigration officer before his GC was granted.
Why go on an EAD ?
EAD is like a virtual green card. You can do most of the stuff GC holders can do including drawing unemployment benefits. It is such a relief to switch out of H1B and be independent.
Back to the question "what happens if my I-485 is denied ?"
You are on H1. You get back on H1 immediately if possible. Else wait out in India for 1 year and come back on H1. If you have a house here, give power of attorney to a relative or friend and rent it out for 1 year. -- These are all worst case scenarios.
If 485 denial is due to out of status for more than 180 days or criminal history or DUI or any other valid reason, why would even H1B will be approved. The existing H1-B may be revoked when USCIS realize that applicant was out of status. May be my understanding is not correct, Gurus can answer better.
Spec, Viz, Sports, gcq, bluelabel,
Thanks a lot for your responses. H1B should be the route to be taken.
The worrisome part is that "out-of-status" days are counted since the time you start using your EAD.
One more question. How and when do you actually switch from H1 to EAD ? Lets assume that H1 is expiring in Jan 2015. Then would the switch the EAD happen automatically on Jan 2015 or do I have to go to my employer and file a new I9 ?
Unlawful presence will start to accrue from the date of the I-485 denial in the absence of lawful status. Time out of status will continue to accrue.
For the purposes of 245(k), time out of status will be determined for all days the person was not in lawful status, which includes those days when the person was relying solely on a period of authorized stay by virtue of having a pending I-485. That was the thrust of the court decision referred to in a previous post. Using an EAD confers no legal status - it is simply employment authorization.
In fact, there is another (2 actually) similar case where the person was authorized to work by virtue of the 240 day rule while extending his H1B, but technically had no lawful status, after the old I-94 expired, since it was only a period of authorized stay. He was arrested and detained. The case went through several rounds in the courts. The judges were not impressed that such a situation could exist.
This is the problem when policy is not converted into proper law and formal regulations. Here is an interesting article about that (and other issues).
Last edited by Spectator; 09-25-2014 at 04:35 PM.
Without an irritant, there can be no pearl.
You are correct. NOID is the previous step to denial.
That comment was in context with the Sportsfan's original message, I meant not to expect everything would happen in a traditional way at USCIS. We cannot always expect an EVL RFE right after I-140 revocation.
I have no idea on NOID description and time limits to respond but definitely it is different from RFE and its time limits.
Spec,
EAD does not give a status. It gives employment authorization only -- true.
However I-485 gives a lawful status for all practical purposes. So if applicant files I-485 before the expiry of H1B, he is practically in lawful status.
Here is the AFM manual clarifying it. Go to page 10, first para ( Example 2)
http://www.uscis.gov/sites/default/f...design_AFM.PDF
Situation with H1B and I-485 is different.
In case of I-485:
I-485 is the status document.
EAD is the work authorization.
In case of H1:
H1B is a dual intent document, covers both status and work authorization.
However in case of H1B extension, USCIS has the provision of extending H1B without giving the I-94 portion of it. Looks like USCIS was focussing on their authority to not give I-94 to the applicant in this case.
Links provided seem to be broken.
That example only confirms what I am saying.
To paraphrase the example, he is no longer in lawful status from Jan 2, 2009 and could be put into removal proceedings as a result. However, he cannot accrue unlawful presence towards the 3 and 10 year bars while the I-485 remains pending.
Unlawful status and unlawful presence are entirely different. If you've read that document, you'll understand the concept that if you are unlawfully present, you must also be in unlawful status. However, it it possible to be in unlawful status without being unlawfully present.
This is covered in the section the example comes from:
As the above states, the ability to remain in the USA based solely on a pending I-485 is a matter of prosecutorial discretion. In this sense, the ability to remain in the USA is the same as those people granted DACA, strange as that might sound.(2) Distinction Between "Unlawful Status" and "Unlawful Presence"
To understand the operation of sections 212(a)(9)(B) and 212(a)(9)(C)(i)(l) of the Act, it is important to comprehend the difference between being in an unlawful immigration status and the accrual of unlawful presence ("period of stay not authorized"). Although these concepts are related (one must be present in an unlawful status in order to accrue unlawful presence), they are not the same.
As discussed in chapters 40.9.2(b)(2) and (3), there are situations in which an alien who is present in an unlawful status nevertheless does not accrue unlawful presence. As a matter of prosecutorial discretion, DHS may permit an alien who is present in the United States unlawfully, but who has pending an application that stops the accrual of unlawful presence, to remain in the United States while that application is pending.
In this sense, the alien’s remaining can be said to be "authorized".
However, the fact that the alien does not accrue unlawful presence does not mean that the alien’s presence in the United States is actually lawful.
This not about whether EOS is granted or not when a decision is made.
It is about the fact that while the person is waiting for a decision to be made after their I-94 has expired, it is another case where they are relying on a period of "authorized stay", rather than lawful status.
I suggest you read the original case.
Last edited by Spectator; 09-25-2014 at 04:58 PM.
Without an irritant, there can be no pearl.
suninphx,
They both work for me. I have changed the second link to be more obvious anyway.
Here are the links :
http://blog.cyrusmehta.com/2011/04/v...narrowing.html
http://blog.cyrusmehta.com/2012/11/i...me-modest.html
or in text
http://blog.cyrusmehta.com/2011/04/victory-in-el-badrawi-v-usa-narrowing.html
http://blog.cyrusmehta.com/2012/11/issues-ripe-for-rulemaking-some-modest.html
Hope they work for you.
Without an irritant, there can be no pearl.
Stiill no luck. May be blocked at company level ( gave no message to that effect though). I will try to access from home. Thanks Spec.
Spec,
Went through the cyrus metha article and also through the cases in brief. The "status" vs "authorized stay" is worthy only for a discussion. H1B extension scenario and I-485 filing scenario falls under 2 different laws. So they cannot be compared as apple to apple.
When an H1B applicant in status applies for I-485, he is already in authorized stay. USCIS will only consider an applicant who is in status as an I-485 applicant. Regardless of whether it is authorized stay/status, the practical effect is the applicant can remain in the country while his application is being adjudicated. Denial of I-485 doesn't make his denial retro-active. He will accrue unlawful status only from the date of denial of the I-485 application.
There was a hoopla over this "status vs authorized stay" thing couple of years back. USCIS clarified that I-485 applicants are ok to stay. They need not worry. I don't have the link handy.
If we take the status vs authorized stay argument seriously USCIS could deport everyone both people on I-485 and people extending or changing status on H1B, L1 etc. Would they do it in real world ? No. If that was their intend why would they accept these applications to begin with. Authorized stay is situation that allows USCIS to deport who is not qualified for the benefit they are seeking. It is not meant for high handedness of USCIS.
Last edited by gcq; 09-25-2014 at 09:29 PM.
gcq,
I've tried my best, yet utterly failed, to describe the concepts involved in this discussion. I can't think i can do better.
Since you clearly still don't get it, I am not going to continue the discussion further.
Without an irritant, there can be no pearl.
GCQ - the issue of status (or lack thereof) for AOS pending situation (when H1 status expires or is abandoned) was settled long back. Spec is correct. It seems all you are trying to say is there is no risk in going AOS only. And that is true when AOS is not denied. But for the 4-5% unfortunate people for who it is denied they would instantly start acruing unlawful presence.
I think what may be arguable is Spec's comparison of AOS to deferred action. I think (Spec correct me if I am wrong) AOS is part of AC21 related law. Whereas DACA is pure executive action.
I no longer provide calculations/predictions ever since whereismyGC.com was created.
I do run this site only as an administrator. Our goal is to improve clarity of GC process to help people plan their lives better.
Use the info at your risk. None of this is legal advice.
Forum Glossary | Forum Rules and Guidelines | If your published post disappeared, check - Lies and Misinformation thread
I am not contesting the status vs authorized stay. I agree legally that has validity - though it sounds weird. If AOS get denied they will start accruing unlawful status. No doubt about it. However this status vs authorized stay argument will only scare applicants. It has no practical value. That is my point.
I'll make one last post on the subject.
Sometimes, at least for me, it is interesting to have a discussion on a subject that is a little more subtle and stimulating than "when will my PD become current?" and the like.
Maybe that is too much to ask.
I said at the outset that this was not something that, as a practical matter, people had to worry about. That was never the point of the discussion.
The deeper question is that is it acceptable, after all this time, for people with a pending AOS to have to rely solely on USCIS discretion to remain in the USA. This is a policy that is not not legally binding on any other agency, which is demonstrated by the rogue action that CBP and ICE sometimes undertake.
It's high time that the protection was formalized into law and formal rule making so that people don't have to even think about it again.
As for the comparison to DACA, that is fair, but I admit I made the comparison for effect. In both instances, cases rely on the exercise of prosecutorial discretion. Technically (Ironically), those with DACA approved may be slightly better protected. Because it was announced as an EO, USCIS, CBP and ICE all have to respect the provisions, whereas AOS authorized stay is only by virtue of a USCIS policy. AOS predates AC21 by some time and the authorized stay has no relation to that legislation.
There are numerous other areas that are of continuing importance to people, many only based an a non-binding USCIS memo. The Cronin Memo (2000) would be an example.
As discussed in one of the articles, there is a big difference if a case ends up in the courts, when a defence relies on a non-binding memo rather than proper rule making or the law.
Maybe these are just issues that no one else is interested in.
I think it illustrates how disconnected and ill thought out the current immigration legislation is.
I've learnt my lesson.
Last edited by Spectator; 09-26-2014 at 07:49 AM.
Without an irritant, there can be no pearl.
Thanks Spec. This is good.
I no longer provide calculations/predictions ever since whereismyGC.com was created.
I do run this site only as an administrator. Our goal is to improve clarity of GC process to help people plan their lives better.
Use the info at your risk. None of this is legal advice.
Forum Glossary | Forum Rules and Guidelines | If your published post disappeared, check - Lies and Misinformation thread
Hello Q / Spec / Kanmani / Gurus,
I understand the benefits of working on EAD after I-485 is pending for 180 days or more. Please advise on below question as I would be executing AC-21 in near future and I have this question in mind.
I understand that, after 485 is pending for 180 days or more, even if employer revokes underlying I-140 petition, it should not have any impact. However I saw few unfortunate folks receiving RFE or even I-485 getting rejected without USCIS issuing RFE or NOID.
In case I-485 is rejected in error by USCIS, would EAD be invalid immediately and alien would go out of status, loose the job etc. Can I-485 rejected be appealed in this case?
Thanks for your time and help!
Yes indeed. EAD immediately becomes invalid and you are out of status unless you have a valid H1 with a job.
I no longer provide calculations/predictions ever since whereismyGC.com was created.
I do run this site only as an administrator. Our goal is to improve clarity of GC process to help people plan their lives better.
Use the info at your risk. None of this is legal advice.
Forum Glossary | Forum Rules and Guidelines | If your published post disappeared, check - Lies and Misinformation thread
Thanks Q. Maintaining H1b along with invoking AC-21 is tough, specially for consultants.
Oh ok.
Now think this way .... the chance of 485 rejection is only 5% or so. So if you want to take that chance then go ahead. One thing is for sure ... don't live in fear. If you like doing something ... just do it. As Al Pacino says in Scent of a Woman - "When in doubt... eff it."
Excuse me for the language. But I hope you understand whta I am saying. Best Wishes to you.
I no longer provide calculations/predictions ever since whereismyGC.com was created.
I do run this site only as an administrator. Our goal is to improve clarity of GC process to help people plan their lives better.
Use the info at your risk. None of this is legal advice.
Forum Glossary | Forum Rules and Guidelines | If your published post disappeared, check - Lies and Misinformation thread
For discussion purposes, rather than advice.
My understanding is that the EAD is valid until it is specifically revoked by USCIS.
That distinction may be moot, since USCIS usually include that language in the I-485 denial.
Ron Gotcher postulated an interesting position where an I-485 was denied due to employer withdrawal and the person was AC21 I-140 portable due to 180 days passing since the I-485 was received by USCIS. I wouldn't necessarily want to test it. I think he was musing on the technicalities, rather than giving actual advice to follow that course of action.
He said that since the I-485 denial due to I-140 withdrawal (in circumstances where AC21 I-140 portability applied) was unlawful, that any accompanying EAD revocation was therefore also unlawful. Therefore, the person could (might be able to) continue to work while the unlawful I-485 denial was reversed.
It is absolutely true that until the denial was overturned (regardless of the EAD position), the person would no longer be in a period of authorized stay due to a pending I-485 or in legal status and would be accruing unlawful presence until they returned to a legal non-immigrant status , or the denial was reversed.
Without an irritant, there can be no pearl.
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