Adjustment of Status

Status, authorized period of stay and unlawful presence

Status, authorized period of stay and unlawful presence are three VERY important concepts in US immigration laws with far reaching implications. The nuances in these concepts are so intricate that they can trip up even my fellow-lawyers. I see issues in this all the time.

Here is a brief primier to enable you to understand the basics. This is by no means an exhaustive analysis.

Status

Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments and blog on immigration.com

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I-485 interview-- does arrest create a problem

Quote: I just got a letter from USCIS that I need to appear for a I-485 interview. I had applied my green card under the EB-XX. To update you i had an arrest record in 2005 for a domestic violence battery case, which was later dismissed in court. Also you might be aware my wife is currently in india, and we are under separation. She will join me on (XXX date) if she agrees for marriage counseling. Under these circumstances I had some questions which I wanted answers for: Please let me know your response.
 

Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments and blog on immigration.com

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H-1 Extension based upon spouse's 140; Child born in USA

Quote: 1. Hello Rajiv, my wife and I have been working on H1B for different employers. My employer applied for my GC in 07. I have my I-140 approved, my wife and I have our EAD cards and AP. Thanks to your team! Now my wife's H1B term (6 years) ends on Jan 2010. Does this mean that if she wishes to continue her employment with the same employer after Jan 2010, she "HAS" to use her EAD ?

Ans. Yes. Under the current USCIS policy, they will not extend her H-1, based upon your I-140. They used to do that a few years ago, but not any more, as far as I know.
 

Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments and blog on immigration.com

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EB-3 "Unavailable"

Correct. "Unavailable" means that it is the ESTIMATE of the State Department that visa numbers for India are exhausted for this fiscal year which ends on September 30. But the estimate may not always be accurate. DOS may go back and reopen this category if they need to (unlikely, but not impossible). Your green card can go on in your absence. That is no problem as long as we have answers to these questions: 1. Is the job really permanent? 2. Why is the employer accommodating you? 3. Who is performing the job in your absence?

Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments and blog on immigration.com

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GC future job; H-1 ext. revocation upon 140 denial, etc

Ans. Yes. As long as the employer has the intention of keeping the job open for you and you have the intention to join them, the green card process can continue.

Quote: If by any chance they say that I can do it, does it involve just an amendment to my H1b or will it be a fresh H1b? My job responsibilities will change and $8000 change in salary only.( from Research Associate to resident). If yes, can I join residency before the amendment is approved? I heard that INS should receive the petition before the join date and I am fine.

Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments and blog on immigration.com

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Converting from EAD back to H-1--Updated 6 April 2009

 

Quote: I am currently on H1b status valid till may-2011 and have a valid EAD card, My I-485 is pending for over 180 days. My company has cut my position and may revoke my H1b. If I transfer my H1b to another company and then work on EAD. Will my H1b remain in the dormant status?

Ans. Yes.

Quote: If yes, can i switch back to my H1b if i wish to? and what would be the process?( go out of country to get stamped?)

Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments and blog on immigration.com

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Employers and Employees -- H-1 or EAD?

 There are two situations to analyze here: being benched and getting paid a lower salary. Both of them have problematic implications for employers and employees.

Here is what concerns me. As far as I know, it has never been done so far, but the possible consequences of being benched are that the I-485 can be denied and (POSSIBLY, but there are strong arguments against it) I-140 could be revoked if already approved. If I-140 is not approved, USCIS could easily deny the I-140.

Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments and blog on immigration.com

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H-1 and EAD

Qo. I plan to be on EAD after my 6th year of H1-B expires on September 23, 2008. If I decide to be back on H1-B then is there any time limit within we have to file for H1B extension after its expiration on September 23, 2008 while I am working on EAD?
Ans. Generally speaking there is no time limit as long as you are entitled to the extension.

Qo. For example, will we have to file within 6 months or 1 year after September 23, 2008 while I-185 is still pending?

Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments and blog on immigration.com

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I-485 Priority Dates and Processing Dates

In a pending AOS (I-485), unless your PD is current, USCIS will not touch your application. Only when the PD becomes current, they start processing applications ROUGHLY in the order received.

Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments and blog on immigration.com

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GC Compliance for Employers

Quote: (1) If we revoke their H-1, are we still required to pay full wages if our clients say they do not currently have a project for our employees?

Ans. You are not required to pay "bench salaries" for employees whose H-1 are revoked (remember you must inform CIS and offer employee a one-way ticket home). But we then have exposure to the questions, "do you still have a "permanent" job for them?" If the answer is no, then their GC processing can be interrupted unless they use AC21 portability.

Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments and blog on immigration.com

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