Date of Filing I485 (AOS) is Current for EB1, but L1 Maxed out - PLEASE HELP

[burrows_savio15]

All

I tried reaching out to several Lawyers on Lawfully and other Apps but no one can give me any solid information on how to proceed.

Situation.; My L1A extension was filed in Feb 2020 but due to Covid-19, I did not get a response from USCIS. My company did a premium process last week, for which I got approval notice on 10/01 with a validity of 09/21 which is more than a week past. I reached out to my Lawyer and they said that, I cannot file I-485 because I am out of status currently. I have now maxed out my 7 years on L1A. Any guidance to stay or file AOS as my priority date is current on EB1 ?.

• My wife and I will not be able to travel to India at this time due to Covid-19 situation due to my spouse’s health condition. That said, can we legally stay in “out of status” for two months until we figure out our travel plans? I understand USCIS allows applicants to stay up to 180 days legally. But, if we stay for another 2 months, will that in anyway have a negative impact, when we apply for Green Card in future?

• Can we file for L1A extension 30 days grace period as an exception due to Covid-19 situation?

• Can I apply for “I-601A Provisional Unlawful Presence Waivers The new Provisional Unlawful Presence Waiver (I-601A) allows eligible immediate relatives of U.S. citizens to apply for a waiver while in the U.S. before going to their home countries for their green card interviews.". My sister is an US Citizen, please let me know if this can be an option? or Can I apply for B2 visitor visa while I am in the US and then file I-485 (AOS)

Again, appreciate any advice from the forum. Looking forward to your response.

Thanks

[newacct]

You mean your latest status was granted until September 21 (i.e. the extension was granted from when the previous stay expired until 09/21)? If so, you can file I-485 now. Under INA 245(k), since you are in an employment-based category, you are eligible for Adjustment of Status even if out of status if you have been out of status or working illegally for less than 180 days since your most recent admission. You can't work until you get your EAD or green card.

[burrows_savio15]

Hi newacct,

That is correct. The ext was approved only until 21st Sept 2020 (7years max out) and I received the approval only on 1st Oct.. Below is the email I received from my Lawyer asking me to leave the country. Can you please let me know if this is true?

I hope you are doing well. At the moment you do need to stop working, as your work authorization has reached its maximum limit under the L-1A visa category.

With regards to filing the I-485, one must be inside of the U.S. in valid status to be eligible to apply for this step, as of October 1, 2020.

At the moment your L-1 status has run out, so you would not qualify to apply for the I-485 at this time. As your priority date will likely become current for filing again in the coming months, it would be best if you were to transfer back overseas and spend 1 year working for the foreign subsidiary, so you may return to the U.S. again on a new L-1A. When you re-enter in the future, we will assess if your priority date is current at that time and if so, then we may file the I-485.

I hope that helps with your planning for next steps. Please work with your manager and the GM team to plan offshoring and let us know if you have any questions.

[newacct]

USCIS Policy Manual, Volume 7, Part B, Chapter 8, section E describes the INA 245(k) exemption. You can file I-485 but you cannot work; any illegal work (even if after filing I-485) counts against the 180 days.

[burrows_savio15]

newacct Thanks so much for your response. You are a Saviour. I really hope this is TRUE!. I am in such a miserable position.

[burrows_savio15]

Hi @newacct,

I have sent this information to my lawyer and waiting for his response. Thanks again for your guidance.

[burrows_savio15]

Hi newacct. I received the below response from my Lawyer. Can you please advise?

Since you reached the end of your L-1 maximum period stay in the U.S., you are not eligible to file Adjustment of Status in the U.S. at this time. Section 245(k) applies to instances related to status violations, rather than instances in which the L-1 period of stay has been exhausted.

[newacct]

Are you EB1A, EB1B, or EB1C?

[burrows_savio15]

I am EB1C, currently on L1A (7 years Maxout) last validity was 09/21./20
newacct I have one Important question. Can I stay for up to 180 days without status, as I am trying for a Canada Visa. Will staying out of status within that 180 days Impact or have negative impact on my GC processing in future?

[newacct]

No, you cannot legally stay in the US when out of status. You are deportable right now. However, you can file I-485 now and once you file I-485, you would not be subject to deportation. I don't think your lawyer knows what he's talking about. An expired I-94 is a status violation; there is no difference for the purposes of I-485 eligibility. As far as I can tell, you are eligible to file I-485 now, assuming that a visa number is available for your category and priority date. Can you get a different lawyer or file it yourself?

One thing is that you are in EB1C with an I-140 petition filed by your employer. In order to immigrate on that, the petitioning employer needs to continue to offer to employ you after you immigrate (even though you cannot work for them now). Is that true for your employer? When you file your I-485, you will need your employer to fill out an I-485 Supplement J confirming that they continue to offer to employ you after you immigrate. Are they willing to do that?

[burrows_savio15]

Hi newacct. Thanks again for your response. My lawyer is not agreeing what so ever. Do you know any lawyers that I can work with who is aware and know this option? That will be great, if you know some one. My priority date is Nov 2018 and my EB1 is current for India. Secondly, All the lawyers I talk to have taken my money but never gave me straight answers.

Yes, my Employer is willing to do that and continue to keep me for sure as my client wants me to continue to work.

Different situation : I have applied for Canada Visa 2 months ago and should receive decision anytime soon. During this time, I cannot travel back to India due to Corona and my spouse health condition. Can I wait here for a month in out of status and then move out? Is there any exception or clause during this Covid-19 to get an ext for a month to stay here on out of status?


Thanks again for all your advice. appreciate your help!!!

[Enub4]

Most lawyers don't like cases that get complicated and will not investigate something that they are not willing to do or know they can charge big with a near 100% confidence they will get the approval. Your case is 'risky' for them because they a) don't have the experience and b) they don't want to lower their success ratios.

If you want to stay in the US you have the option to follow newacct advice and file yourself. Good luck.

[burrows_savio15]

Enub4 and newacct Thank you for your response. The problem that I am having right now is that I am out of status for a week now and given the Covid 19 situation, I am unable to travel back to my country due to my Spouse health condition. If I have to file or have a lawyer file for me, because I am in out of status, is it ok to file while I am out of status? Will filing impact GC while I am out of status. Should I leave immediately? There are so many unanswered questions. No lawyers are giving me direct answers. Any help is greatly appreciated!

[Enub4]

Newacct said:

No, you cannot legally stay in the US when out of status. You are deportable right now. However, you can file I-485 now and once you file I-485, you would not be subject to deportation. I don't think your lawyer knows what he's talking about. An expired I-94 is a status violation; there is no difference for the purposes of I-485 eligibility. As far as I can tell, you are eligible to file I-485 now, assuming that a visa number is available for your category and priority date. Can you get a different lawyer or file it yourself?

so I think you can file I-485 and then stay in the USA. I'm no expert but newacct always answer with the correct information.

[burrows_savio15]

Enub4 Yeah Thanks! I am waiting for newacct to respond. He knows much much more than the lawyers that I have consulted.