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485 denied- out of status ???

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  • 485 denied- out of status ???

    If i485 is denied while one is in AOS status in US what are the options?
    1. Are you immediately out of status from the day of denial?
    2. Is there a way to continue in USA by transferring to another h4 or h1b (based on another approved 140)
    3. If answer to 2 is yes, can it be filed in USA or should one leave country for consular preocedinf

  • #2
    Originally posted by Guy View Post
    If i485 is denied while one is in AOS status in US what are the options?
    1. Are you immediately out of status from the day of denial?
    2. Is there a way to continue in USA by transferring to another h4 or h1b (based on another approved 140)
    3. If answer to 2 is yes, can it be filed in USA or should one leave country for consular preocedinf
    1. Whether your I-485 is pending and whether you are out of status are actually independent things. You are "out of status" if your underlying nonimmigrant status has ended. You are allowed to stay in the US if you have a pending I-485 even if you are out of status, but that doesn't mean you have status. So if your I-485 is denied after your status has ended, yes, you are out of status, and you were out of status before too; the only difference being that you were allowed to stay in the US before because of the pending I-485, and you are no longer. On the other hand, if your existing status has not ended, and you continued to comply with the rules of that status, then having a pending or denied I-485 does not affect that status.
    2. You must generally be in status to apply for Change of Status or Extension of Status. So if your existing status has already ended (no matter if I-485 is still pending or is denied), you may not be able to change or extend status.
    3. #2 is referring to Change of Status or Extension of Status in the US. You can always leave the US, and, if you have no ban, get a visa and return to the US.

    This is my personal opinion and is not to be construed as legal advice.

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