AOS or CP? Please help..

[mwarrior]

Hello All,
Need some guidance on this situation...

I was working on H1B and due to the economic downturn, was laid off by client company.

My employer- Company A cancelled my H1b visa within a month of me being laid off. Before Company A sent the notice to cancel to USCIS, company B filed for my H1B transfer.
Company A I-94 was valid till Sep 9, 2009. They cancelled my visa in May 2009.
Company B filed in May 2009. The I-94 was approved from Sep 10, 2009 to end of 6 years on H1B.
My approval notices have continuous dates for I94 validity with no gaps.

Even though Company B filed for my transfer, I was not able to start working for them till after a few months since the job market was bad. Hence I do not have paystubs from May 2009 till end of year 2009. I do realise that I have to be continuously paid while on H1B to maintain status, but had no option.

W2/tax documents are not on the list of required documentation for I-485, so is there a possibility that my I-485 will be approved without any issues? Is CP better than AOS considering the above?

Can somebody please guide me on how to handle this situation since I will be filing for my I-485 soon.

How will this impact my I-485 application?

Please help...

[demedja]

I think that you may need a lawyer at this juncture. Here’s why:

1. You say that your I-94 is current and there is no gap reflected where you were unemployed before you switched employers. USCIS may not view your situation the way you do. The terms of your H1B visa are that you must remain gainfully employed with the employer for which the visa was granted. If you stop doing that or switch employers without USCIS authorization then you become ‘out of status’. If you lose the job that you got the visa for you are to find another employer and apply to CIS for permission to change to the new employer. Due to the terms of the type of visa that you have, if you are not able to get this done then you are supposed to leave the country---unless you have another type of visa (i.e. a B-1 or B-2) that you can apply to change status to or leave and re-enter on (in the classification that the visa permits). Despite how valid the I-94 and the visa look to you they both automatically become invalid whenever the terms of either document are violated, and based on what you wrote in your post, you already know this. You lost the job and you were unemployed from May 2009 to September 2009. And though you found another job in September you were not able to start until after December. That’s not just a ‘few months’. That’s more than half of the year that you were not actually working.

2. You say that your had no other option. Again, USCIS may not view your situation that way. As far as they are concerned, you did have a choice: the choice was to leave the country rather than to stay and risk accumulating unlawful presence. Even though the I-485 application form doesn’t ask for the W2 or 1040 doesn’t necessarily mean that CIS won’t ask you to bring it with you to your interview, or that they won’t send you an RFE requiring that you send these documents to them AFTER your interview. Because of the type of visa that you have they may very well ask for these documents. What would you do then? You may need either a lawyer or at least a really convincing story to justify why you stayed in the country and what you were doing during that 8 month period when you weren’t working. Were you really not working or were you working under the table? I’m not expecting you to answer this question on a public forum, but its something to think about because its definitely something that the IO who’s adjudicating your case will be thinking about. Unless you have bank statements to show that you had sufficient savings during the 8 months that you were unemployed he/she will want to know where you got the funds to support yourself. Also, because your visa and I-94 may no longer be valid CIS may tell you that you are ineligible to adjust status in the US and that you have to go back to your country for CP. CIS doesn’t view the withholding of information from any differently than lying outright. If you are caught doing this they can use it as a reason to deny your case entirely. I hope this doesn’t happen and that it works out well for you. Good luck!