Legally Complicated Cases - Discussion

[Eb2_Dec07]

Dear friends,
I'm truly in a mess. 2 years ago I was unknowingly out of status for 2 months since my then employer revoked my visa with out telling me .
Now my dates became current this coming december via my spouse and I sent all the paper work to spouse's attonery hoping to file . I voluntarily discussed the issues with my past visa revoke and explained I got H4 and H1 approvals later with out issue.

Just this morning my spouse got an email from her attorney that they cannot proceed with my application citing those complications.

I'm now scrambling to find another attorney and wondering whether I should even tell the attorney all the mess that I got in to 2 years ago.

Very disappointed and hoping I will be able to file for 485 .

[10102007]

Dear friends,
I'm truly in a mess. 2 years ago I was unknowingly out of status for 2 months since my then employer revoked my visa with out telling me .
Now my dates became current this coming december via my spouse and I sent all the paper work to spouse's attonery hoping to file . I voluntarily discussed the issues with my past visa revoke and explained I got H4 and H1 approvals later with out issue.

Just this morning my spouse got an email from her attorney that they cannot proceed with my application citing those complications.

I'm now scrambling to find another attorney and wondering whether I should even tell the attorney all the mess that I got in to 2 years ago.

Very disappointed and hoping I will be able to file for 485 .

Very sorry to hear about your situation. But on the brighter side, the lawyer was straightforward. My suggestion is to go with some good lawyer. And please do disclose these issues to the new lawyer. By withholding information, you can make it complicated later and it might be too late.

I'd say you should be fine if you go with a good and experienced lawyer. All the best.

[ragx08]

Dear friends,
I'm truly in a mess. 2 years ago I was unknowingly out of status for 2 months since my then employer revoked my visa with out telling me .
Now my dates became current this coming december via my spouse and I sent all the paper work to spouse's attonery hoping to file . I voluntarily discussed the issues with my past visa revoke and explained I got H4 and H1 approvals later with out issue.

Just this morning my spouse got an email from her attorney that they cannot proceed with my application citing those complications.

I'm now scrambling to find another attorney and wondering whether I should even tell the attorney all the mess that I got in to 2 years ago.

Very disappointed and hoping I will be able to file for 485 .

Never hide information from a attorney/doctor/etc.... IMHO. It is good that you did and the attorney frankly accepted that he cannot handle the case. Infact, you are fortunate to be in this situation. Imagine if the attorney goes ahead with your filing and when a RFE is triggered, he messes it up! There are other attorneys who can handle such situations.

FYI, my spouse has similar issue - discussed this openly with my attorney and she gave me enough options which convinced me to retain her for my I-485 filing (which I haven't yet... and hoping to in the next few months (PD 08/2008).)

Goodluck!

[Eb2_Dec07]

Thanks Ragx,

Would you throw some light on what options your attorney gave regarding your spouse ? . My problem is how to fille out the forms.
Technically I was with my employer till End of July and my employer had revoked my h1 end of May and he realized it after 2 months i.e in July and told me about the mistake from the accounts team in our company . Unfortunately I was on bench around that period and due to some DOl query on employer , accounts guy just included my name aswell in the revoke list that was mailed out to the uscis. I have gone in great length to explain the scenario to our current attorney.

Now I just contacted mythen employer and he spoke with his legal team and asked me to use the dates of employment until July end covering those 2 months. In case there is a RFE ( he is confident there will not be since I got 4 visa approvals post that case) , he said he will support my case. He said if you say on the form you were out of status , it will draw unnecessary attention .

Never hide information from a attorney/doctor/etc.... IMHO. It is good that you did and the attorney frankly accepted that he cannot handle the case. Infact, you are fortunate to be in this situation. Imagine if the attorney goes ahead with your filing and when a RFE is triggered, he messes it up! There are other attorneys who can handle such situations.

FYI, my spouse has similar issue - discussed this openly with my attorney and she gave me enough options which convinced me to retain her for my I-485 filing (which I haven't yet... and hoping to in the next few months (PD 08/2008).)

Goodluck!

[Eb2_Dec07]

Thanks 1010. Fortunately my then employer although screwed me up , I kept good terms and he is referring me to his attorney which is a prominent law firm in NY/NJ area and I feel little comfortable since he knows what happened , in case there is a query , he would be able to support my case.

Very sorry to hear about your situation. But on the brighter side, the lawyer was straightforward. My suggestion is to go with some good lawyer. And please do disclose these issues to the new lawyer. By withholding information, you can make it complicated later and it might be too late.

I'd say you should be fine if you go with a good and experienced lawyer. All the best.

[Feb262009]

Hi Eb2_Dec07,
You are not the primary application, right? The "out of Status" is tracked only from last entry to USA. If you have gone out of country after july, you should be fine. If you have stamping, just plan a quick trip out of country before you file 485. I guess it should be fine.

Pls note - I am not a lawyer and this is not a legal advice.

Thanks Ragx,

Would you throw some light on what options your attorney gave regarding your spouse ? . My problem is how to fille out the forms.
Technically I was with my employer till End of July and my employer had revoked my h1 end of May and he realized it after 2 months i.e in July and told me about the mistake from the accounts team in our company . Unfortunately I was on bench around that period and due to some DOl query on employer , accounts guy just included my name aswell in the revoke list that was mailed out to the uscis. I have gone in great length to explain the scenario to our current attorney.

Now I just contacted mythen employer and he spoke with his legal team and asked me to use the dates of employment until July end covering those 2 months. In case there is a RFE ( he is confident there will not be since I got 4 visa approvals post that case) , he said he will support my case. He said if you say on the form you were out of status , it will draw unnecessary attention .

[ragx08]

Thanks Ragx,

Would you throw some light on what options your attorney gave regarding your spouse ? . My problem is how to fille out the forms.
Technically I was with my employer till End of July and my employer had revoked my h1 end of May and he realized it after 2 months i.e in July and told me about the mistake from the accounts team in our company . Unfortunately I was on bench around that period and due to some DOl query on employer , accounts guy just included my name aswell in the revoke list that was mailed out to the uscis. I have gone in great length to explain the scenario to our current attorney.

Now I just contacted mythen employer and he spoke with his legal team and asked me to use the dates of employment until July end covering those 2 months. In case there is a RFE ( he is confident there will not be since I got 4 visa approvals post that case) , he said he will support my case. He said if you say on the form you were out of status , it will draw unnecessary attention .

Well, my wife was on H1B which was valid till Sep 2010. She resigned her job in Sep 2009. My H1B was expiring in July 2010 - so decided to file her H4 along with my H1B extension - but had to wait till Jan since they don't accept applications until 6 mths prior. Due to a HR mistake, the attorney only filed my H1B extension - and did not include the dependent's H4. Once the mistake was realized, they refiled the H1 & H4 together in April 2010.

By all acounts, this exceeds 180 days grace period. I was concerned abt this and asked my attorney after seeing few posts here last week. We don't know if my wife's employer revoked her H1B back in Sep 2009. According to my attorney, if he did, my wife's H4 conversion would have been rejected. According to her, the H4 was approved in July 2010 - before the H1B expired. Based on the documentary evidence she has in hand, she thinks it should be fine. In the worst case, if there is an RFE, the options she gave was
"(1) approach your wife’s old employer and see what accommodations we can secure from them; (2) argue that since no withdrawal notification was ever provided USCIS and that she did not otherwise work without permission, therefore she arguably did not fail to maintain status; (3) pin down the actual dates and see if 245(k) applies"

She did mention "we have had cases where the underlying change of status was denied by USCIS due to a notification received by USCIS from an H-1b employer advising it of the termination of employment and requesting withdrawal of its H-1b petition"

Your case could be different since your H1B was revoked. I think if you mention that you worked after your H1B was revoked - it will have a bigger impact. I'm not an expert in these maters - I suggest you check with a good attorney and make sure you explain all the facts so that he/she will know what they are dealing with and give the right advice.

Hope that helps - and good luck with your process.

[red200]

very old H4 extension denied after applying 485/EAD/AP



Hello all,

Please help, We are in a unique situation

Sorry if i am posting it in a wrong place

My wife Applied for H4 extension in the month of april 2011 but had to leave to india in mid May 2011, We also have sent a withdrawal to USCIS the next day she traveled to india, she got a visa in india and then came back to US in July 2011 on a New I-94.

We both also had another extension approved till 2015 in sept 2011 and applied to 485/EAD/AP in nov 2011.

Now just yesterday she got a denial on the previous H4 application for which we have sent a withdrawal letter.

Is this violating her status ? and how should we respond to this denial?
will this effect her 485 processing ?

Appreciate the help greatly

thanks

[qesehmk]

Your details are sketchy. Would've been better to clarify some details such as - how did she apply for H4 in India? Using your H1? What was the valid duration of your H1 then?

But assuming you had a valid H1 which she used to get an H4 in India ... this doesnt seem to be a problem. USCIS seems to have denied her old H4 petition. But I do think this needs to be dealth through a lawyer to make sure it doesn;t come back and bite you. Good luck.

very old H4 extension denied after applying 485/EAD/AP



Hello all,

Please help, We are in a unique situation

Sorry if i am posting it in a wrong place

My wife Applied for H4 extension in the month of april 2011 but had to leave to india in mid May 2011, We also have sent a withdrawal to USCIS the next day she traveled to india, she got a visa in india and then came back to US in July 2011 on a New I-94.

We both also had another extension approved till 2015 in sept 2011 and applied to 485/EAD/AP in nov 2011.

Now just yesterday she got a denial on the previous H4 application for which we have sent a withdrawal letter.

Is this violating her status ? and how should we respond to this denial?
will this effect her 485 processing ?

Appreciate the help greatly

thanks

[red200]

Q thank you very much for the reply.
I will be in touch with an attorney soon.

She applied for H4 VISA in June 2011 based on my H1, which is valid till 2012.
In Sept 2011 We had another extension H1 and H4 (New I-94) till 2015 , Obviously as she travelled with new visa , she got new I-94 upon re entry.

The Previous H4 May have been denied with Abandonment, as attorney or uscis may have misplaced the withdrawal letter or it could have been that the withdrawal letter reached USCIS a day after she travelled to India.(we havent recieved the denial reason)

Also I heard about Last action rule is related to extension of status and not COS.
But will this apply in this case , given that denial was on previous I-94 not the new one. ?



I

[qesehmk]

If the denial is on her previous H4 application, that shouldn't invalidate her entry into USA using the H4 visa she received in India.

If the underlying H1 itself was invalidated for whatever reason, IMHO, that would be a much more serious thing. But clearly that's not the case.

I am not a lawyer. So please check w your lawyer.

Also I heard about Last action rule is related to extension of status and not COS.
But will this apply in this case , given that denial was on previous I-94 not the new one. ?

[red200]

thanks Q, My H1 has been Valid all through this time.

[dreamer]

Hello Eveyone,

I have a colleague his PD is Jan 2008 and is current as of Dec 1st but looks like his lawyer is raising some issues based on his situation explained below, I have suggested him to get a second opinion with different lawyer but thought I would discuss this with you guys hoping to get some insight on this.

He have applied his Labor and got his I-140 approved through company A in 2008. Company B has acquired Company A completely in 2009 immediately stopping all the operation of Company A and corporation is completely closed in 2010. In 2011, Company C have acquired company B, so he is techinically working for Company C. I guess Company A has shown some losses in 2008 & 2009 during its operations, not sure if it would matter but Company B and Company C financial situation is good.

In labor prewailing wages was mentioned as 66K but his current payroll is run for 60K and I am not sure if this would matter as GC is for Future Employement but thought of mentioning it in here.

Lawyer has mentioned one week back that he has to apply new I-140 based on all the company mergers but today they have came back asking to restart the whole process by applying Labor.

My Questions are
1. Does he need to apply for new labor due to all this acquisitions mentioned above?
2. As prewailing wage information mentionned is higher than his current payroll, will that have any impact?
3. Is there a way to apply I-140 amendment in this scenario?
4. If he apply for I-485 now and if its not approved, can he capture his old priority date while applying new labor?
5. In worst case, if he has to reapply labor, can he capture old priority date?

Thank you all for your valuable time, hope you shed your opinions on it, I completely understand we would have to rely on legal advice but thought would check in this forum

P.S: I have posted this questions here as its mostly active threads, please feel free to move it to other thread once I get some response.

[ravisekhar]

Hello Eveyone,

I have a colleague his PD is Jan 2008 and is current as of Dec 1st but looks like his lawyer is raising some issues based on his situation explained below, I have suggested him to get a second opinion with different lawyer but thought I would discuss this with you guys hoping to get some insight on this.

He have applied his Labor and got his I-140 approved through company A in 2008. Company B has acquired Company A completely in 2009 immediately stopping all the operation of Company A and corporation is completely closed in 2010. In 2011, Company C have acquired company B, so he is techinically working for Company C. I guess Company A has shown some losses in 2008 & 2009 during its operations, not sure if it would matter but Company B and Company C financial situation is good.

In labor prewailing wages was mentioned as 66K but his current payroll is run for 60K and I am not sure if this would matter as GC is for Future Employement but thought of mentioning it in here.

Lawyer has mentioned one week back that he has to apply new I-140 based on all the company mergers but today they have came back asking to restart the whole process by applying Labor.

My Questions are
1. Does he need to apply for new labor due to all this acquisitions mentioned above?
2. As prewailing wage information mentionned is higher than his current payroll, will that have any impact?
3. Is there a way to apply I-140 amendment in this scenario?
4. If he apply for I-485 now and if its not approved, can he capture his old priority date while applying new labor?
5. In worst case, if he has to reapply labor, can he capture old priority date?

Thank you all for your valuable time, hope you shed your opinions on it, I completely understand we would have to rely on legal advice but thought would check in this forum

P.S: I have posted this questions here as its mostly active threads, please feel free to move it to other thread once I get some response.

As far as i know. company C has to file successor of internet and amend the I140.

[qesehmk]

This is too complicated for any one of us to answer. But one thing that probably all of us will agree upon is your friend's ability to capture his old PD.

That he can sure do.

Hello Eveyone,

I have a colleague his PD is Jan 2008 and is current as of Dec 1st but looks like his lawyer is raising some issues based on his situation explained below, I have suggested him to get a second opinion with different lawyer but thought I would discuss this with you guys hoping to get some insight on this.

He have applied his Labor and got his I-140 approved through company A in 2008. Company B has acquired Company A completely in 2009 immediately stopping all the operation of Company A and corporation is completely closed in 2010. In 2011, Company C have acquired company B, so he is techinically working for Company C. I guess Company A has shown some losses in 2008 & 2009 during its operations, not sure if it would matter but Company B and Company C financial situation is good.

In labor prewailing wages was mentioned as 66K but his current payroll is run for 60K and I am not sure if this would matter as GC is for Future Employement but thought of mentioning it in here.

Lawyer has mentioned one week back that he has to apply new I-140 based on all the company mergers but today they have came back asking to restart the whole process by applying Labor.

My Questions are
1. Does he need to apply for new labor due to all this acquisitions mentioned above?
2. As prewailing wage information mentionned is higher than his current payroll, will that have any impact?
3. Is there a way to apply I-140 amendment in this scenario?
4. If he apply for I-485 now and if its not approved, can he capture his old priority date while applying new labor?
5. In worst case, if he has to reapply labor, can he capture old priority date?

Thank you all for your valuable time, hope you shed your opinions on it, I completely understand we would have to rely on legal advice but thought would check in this forum

P.S: I have posted this questions here as its mostly active threads, please feel free to move it to other thread once I get some response.

[dec2007]

Q, and others

please help me in understanding few things:
my pd is dec 31, 2007, ready to file for 485. My labor and i140 are approved with company A. Company B acquired Company A. Today my lawyer said they are applying for i140 amendment along with 485 application.

1) With new i140 amendment, will my EAD be delayed? do they approve the i140 and issue EAD?
2) Im from KS, which service center would they apply.

Thanks a lot

[dreamer]

Ravisekhar,

Thank you for your response!

I have initially thought about the same and lawyer have suggested that Company C have to file successor of interest by amending I140, which can be done along with I-485 as his dates are current now. But this week lawyer came back and said he should start over the process again from labor, which didn't made any sense, so thought of clarifying in here.

As far as i know. company C has to file successor of internet and amend the I140.

[dreamer]

Q,

Thanks for your reply.

My Colleague has planned to travel to India to take care of his sick parent hoping he will get AP soon but his plans got devastated with this situation, I was just trying to help him out by posting his questions in this forum hoping to get some suggestions. I have been following this forum for a while now, I really like the way you guys treat each other with respect and concern, it is like one big happy family.

I really appreciate your work in putting together one great forum with all great people in it.

This is too complicated for any one of us to answer. But one thing that probably all of us will agree upon is your friend's ability to capture his old PD.

That he can sure do.

[iamsam]

Hello Dreamer
I am actually in the same boat. In my case however, there was only company B who acquired company A, and i work for company B.
Since my PD is not current yet, i have done quite a lot of research on this. I have even consulted some immigration attorneys online.
A simple I-140 amendment used to work in the past. However, now it is little more complicated.
Please Refer USCIS Memo: HQ70/6.2, AD07-20, page 4 & HQ70/6.2, AD09-37, page 10.

Although it is slight ambiguous; It sort of hints that if the job location has changed due to company acquisitions then previously approved labor certification is not valid.
"the labor certification is not valid for new geographic area of alien beneficiary's proposed employment".


If your friend's job location is still the same, then he is eligible for a successor in interest. Even if the job location has changed but your friend will go back to work at the original location after GC is approved, then it will be OK as well.

Your friend's case is a little complex because there is also a company C involved. His employer will have to provide a lot of documentation to prove first that company B was Successor in interest to company A and then company C to company B.
Since this brings a lot of work on the HR's table, they generally prefer a totally new labor.
And sometimes employer is also worried about the audit. In case there is an audit, then employer B and employer C will have to produce all murky details of acquisition (which they do not want to get into).

I am a silent reader of this thread. This is my first post. I agree with you 100%, it is indeed a one big happy family.

Anyway, please consult an attorney. They can advice you better.
You can ask your friend to PM me in case he will need more details of my case.

Hope he can sort all this out and visit his sick parent. God Bless.

Q,

Thanks for your reply.

My Colleague has planned to travel to India to take care of his sick parent hoping he will get AP soon but his plans got devastated with this situation, I was just trying to help him out by posting his questions in this forum hoping to get some suggestions. I have been following this forum for a while now, I really like the way you guys treat each other with respect and concern, it is like one big happy family.

I really appreciate your work in putting together one great forum with all great people in it.

[dreamer]

Sam,

Thanks for very detailed response, I will pass this message on to my colleague, will do some research on the memo's you have quoted and PM you if I need more info.

I know his case is little complicated as company C is also involved, so I have already suggested him to consult different attorney for 2nd opinion, I guess he will be doing that next week.

I really appreciate your time and Thanks once again.

Hello Dreamer
I am actually in the same boat. In my case however, there was only company B who acquired company A, and i work for company B.
Since my PD is not current yet, i have done quite a lot of research on this. I have even consulted some immigration attorneys online.
A simple I-140 amendment used to work in the past. However, now it is little more complicated.
Please Refer USCIS Memo: HQ70/6.2, AD07-20, page 4 & HQ70/6.2, AD09-37, page 10.

Although it is slight ambiguous; It sort of hints that if the job location has changed due to company acquisitions then previously approved labor certification is not valid.
"the labor certification is not valid for new geographic area of alien beneficiary's proposed employment".


If your friend's job location is still the same, then he is eligible for a successor in interest. Even if the job location has changed but your friend will go back to work at the original location after GC is approved, then it will be OK as well.

Your friend's case is a little complex because there is also a company C involved. His employer will have to provide a lot of documentation to prove first that company B was Successor in interest to company A and then company C to company B.
Since this brings a lot of work on the HR's table, they generally prefer a totally new labor.
And sometimes employer is also worried about the audit. In case there is an audit, then employer B and employer C will have to produce all murky details of acquisition (which they do not want to get into).

I am a silent reader of this thread. This is my first post. I agree with you 100%, it is indeed a one big happy family.

Anyway, please consult an attorney. They can advice you better.
You can ask your friend to PM me in case he will need more details of my case.

Hope he can sort all this out and visit his sick parent. God Bless.

[polapragada]

Hello Eveyone,

I have a colleague his PD is Jan 2008 and is current as of Dec 1st but looks like his lawyer is raising some issues based on his situation explained below, I have suggested him to get a second opinion with different lawyer but thought I would discuss this with you guys hoping to get some insight on this.

He have applied his Labor and got his I-140 approved through company A in 2008. Company B has acquired Company A completely in 2009 immediately stopping all the operation of Company A and corporation is completely closed in 2010. In 2011, Company C have acquired company B, so he is techinically working for Company C. I guess Company A has shown some losses in 2008 & 2009 during its operations, not sure if it would matter but Company B and Company C financial situation is good.

In labor prewailing wages was mentioned as 66K but his current payroll is run for 60K and I am not sure if this would matter as GC is for Future Employement but thought of mentioning it in here.

Lawyer has mentioned one week back that he has to apply new I-140 based on all the company mergers but today they have came back asking to restart the whole process by applying Labor.

My Questions are
1. Does he need to apply for new labor due to all this acquisitions mentioned above?
2. As prewailing wage information mentionned is higher than his current payroll, will that have any impact?
3. Is there a way to apply I-140 amendment in this scenario?
4. If he apply for I-485 now and if its not approved, can he capture his old priority date while applying new labor?
5. In worst case, if he has to reapply labor, can he capture old priority date?

Thank you all for your valuable time, hope you shed your opinions on it, I completely understand we would have to rely on legal advice but thought would check in this forum

P.S: I have posted this questions here as its mostly active threads, please feel free to move it to other thread once I get some response.

I believe I can give info to some extend..I wnt to through a partial path of the situation

1. Company C - Should file a I-140 as successor in interest for the I-140 of Company A. As long as it is a official merger (no matter full assets or partial assets)

2. No need to file new labor. Unless Company C. Don't want to offer same position with specified salary in future.

3. If the I-140 approved more than 6 months ago .. Yes that PD can be re captured Company C or any new Company X

4. Remember if merger A+B or B+C is not proper or official you cannot file I-140 as successor in interest. May need to go thru Labor process again but should be able to retain PD

5. Last but least...go and slap Company B owners with full forcess

[dreamer]

Thank you for your time, I will pass the message onto my friend.

I believe I can give info to some extend..I wnt to through a partial path of the situation

1. Company C - Should file a I-140 as successor in interest for the I-140 of Company A. As long as it is a official merger (no matter full assets or partial assets)

2. No need to file new labor. Unless Company C. Don't want to offer same position with specified salary in future.

3. If the I-140 approved more than 6 months ago .. Yes that PD can be re captured Company C or any new Company X

4. Remember if merger A+B or B+C is not proper or official you cannot file I-140 as successor in interest. May need to go thru Labor process again but should be able to retain PD

5. Last but least...go and slap Company B owners with full forcess

[swathi]

will an I485 application be denied for being out of status for more than 180 days in the past. Once I came to know that I was out of status(H1) I went to India and then came back on H4 visa and currently "in status". I have all my paperwork ready for applying in Feb. Please advice

[qesehmk]

Being out of status on H1 is a grey area. I know quite a few people first hand who stayed after losing a job for more than 6 months here looking for a job. Subsequently they received their GCs without any problems.

So in nutshell - I am not sure that you went out of status just by virtue of losing your job. Now if your H1 expired and didn;t have valid H1 then that's a totally differnt thing and in that case you may receive an RFE. But even in that case I wouldn't think it should affect your 485 adversely since you did go back and then came back on a valid status.

will an I485 application be denied for being out of status for more than 180 days in the past. Once I came to know that I was out of status(H1) I went to India and then came back on H4 visa and currently "in status". I have all my paperwork ready for applying in Feb. Please advice

[tatikonda]

Hi,
I have filed 485 in Jan 2012 and my dependent got RFE last week, and my case status is initial review, i thought before processing dependent application they first process primary, does this mean my case is pre-adjusted.

Thanks,