Is there a risk of denial?

[khanabc]

Hello everyone,

I would very much appreciate it if someone could help with this case.

Someone came to US as a student. However, after completing studies and practical training, the person had an unathorized employment for a very short period (about 3-4 months). This was about 4 years ago. The person then returned to his home country. He applied for H1 which was approved and he returned to US with H1 status. He has been with the same company for the last 3 years and his h1 was recently extended and he got a new visa. He now has approved labor certification and I-140 and is pursuing CP in India.

Should he instead pursue AOS? Does it matter for his case? Could his green card be denied due to his short unathorized employment in the past?
However, if his application is denied by CP due to this reason, wouldn't AOS deny it for the same reason as well? If asked during the interview if he ever had unauthorized employment, how should he respond to such
a question?

I do know of a couple of people who had unauthorized employments for much longer periods and both were able to get green cards (one through AOS and one through CP). However, they both married US citizen so their application for IV was not employment-based.
The one who did CP also admitted at his interview about his unauthorized employments. This seems to indicate that neither INS nor DOS consider this as basis of denial.

thx

[vishal10]

in my opinion you might be better off with AOS and by using 245(i) grandfathering section.

that way you have to pay $1000 fine but you will be safe from any deportation proceedings in the future.

[Xkuger]

Is there a risk of denial?

Note if you have anytime broken the law. Be truthful about it. One should not lie or withold information. Note One is not better than the other between CP & AOS. If they check and find a problem you may be in trouble in both processes.

So be truthful and go about and pick either process. It does not make one safer than another.

Note 245(I) is something else and not relevalt to your question, It will be a long post if I begin to explain, how, what why & who qualifies for it.

[deepate]

Hello everyone,

I think the matter is not clear here. From what I know, one is not even eligible to apply for AOS if one ever had unauthorized employment (I-485 states that one should not filled that form in such a case). On other hand, section 245(k) allows a person to adjust status if that person has been not been out of status or did not have unauthorized employment for more than 180 days since his last admission to US. In this case, returned to US with valid H1 status and has been in that for the last 3 years, so that does make this person eligible for AOS under section 245(k).
So which is true?

If section 245(k) does provide the above protection, then the person would be safer if he took advantage of section 245(k) and pursure AOS rather than CP. However, if section 245(k) allows a person to adjust status merely on the basis that the person has been in status since his last admission to US, then CP should appreciate that fact as well...?

The original question remains: is unathorized employment a basis of denial. I have been told that unauthorized employment is not one of the basis of denial. On the other hand, if it is a basis and if one reveals this information when asked, then one pretty much confirm one's chances of denial. I guess therefore that the main question people in such situation face is that which one is riskier: withholding such info or revealing it? XKuger, could you please comment?

thx

[Xkuger]

Is there a risk of denial?

1. My understanding is that one can make use of 245(K) only if your out of status period is less that 180 days ( Not since the last admission - This mean I can stay up to 179 days on each admission --- No that's incorrect).

2. If your Out of status period is greater than 180 days you automatically become in-eligible to file an AOS ( Note this 180 days maybe begining, middle or end). In the past there was 245(I) that AOS cases sheltered under, where you could pay a fine & get away with it. Not now.

3. What is mean is that if you have been out of status beyond 180 days "YOU HAVE TO GO FOR CP ONLY".

4. Now the problem is that in such a situation you will also come under the 1-10 year ban ( depending on how much you have over stayed). In this specfic case "It happend a while ago", was the law in effect? etc,etc. Get at attorney's view how this impacts.

So its now at the discreetion of the Consular Post to decide your fate. Note a few months, here, few there --consulate does not make a big issue -- This has been the past trend.

However remember that the THREAT OF REJECTION IS REAL, don't expect to walk away free. If you have broken the law you may face the repurcussions. It will be worse if you lie and are caught, its the most serious offense that may even come to haunt you years later when you are a citizen etc,etc. If they find out the law is very hash "Everything you have will be revoked".

So it would most definitly be foolish to say "There is No risk" be truthful and don't hide / withold information.

Note CP & AOS are one and the same, Do you know that the AOS rejection rate is 15%. So everthing is relative to your case. I don't think you will be able to find statistics of how many people were rejected Vs approved where they were out of status > 180 days.

[deepate]

Hello Xkuger,

While I agree with you on certains points, I have some disagreements. With regard to 1, I think section 245(k) does say "since last admission". Also, section 245 (i) does not mention period of 180 days anywhere. Besides, according the recent extension, one can still pay fine until April 30th 2001 and apply for AOS if one is currently out of status (given that his LC was filed before April 30th). However, I could be wrong. Also, 3/10 year ban does not apply in this case because the person came as a student (so probably had D/S stamped on it) and therefore his overstay is not considered "unlawful" presence (although he was "out of status"). The ban apply if one is "unlawfully" present for more than 180 days after April 1, 1997. Besides, left US and returned with valid H1 and is currently in status which is another reason the ban does not apply.

I think the issue here is not if the person was out of status and for how long. The issue is unathorized employment and whether it could be a basis of denial (given that the ban does not apply)

I agree with you that one should answer truthfully to all questions asked.

So, from my understanding, you are saying that, even if the ban does not apply but the applicant reveals he had unauthorized employment, then it is all upto the consular to decide the fate. This would seems to imply that unauthorized employment could be a basis of denial.

Please let me know your opinions. thx

[ravichandran new]

Re: Is there a Risk of Denial

Please refer to State Depts. Memo on grounds of inadmissability.

A . Duration of Status Cases: Although
most nonimmigrants are admitted for a
specified period of time, students, exchange
visitors, information media representatives
(

[Xkuger]

Is there a risk of denial?

I think we are getting into areas of Interpretation of the Law. This has to be provided by a Lawyer (I am not one). I suggest you should ask you friend to talk to an Immmigration Attorney & get his opinion as to how he interprets is as well as would defend you if need be.

I am interested in knowing what they have to see, so please post their response.

[vishal10]

Xkuger,

Can you clarify following

You said:
2. If your Out of status period is greater than 180 days you automatically become in-eligible to file an AOS ( Note this 180 days maybe begining, middle or end). In the past there was 245(I) that AOS cases sheltered under, where you could pay a fine & get away with it. Not now.

---
@#%$'t it the case that you were out of status any time on or before Jan 1 1998, you can still use 245(i) grandfathering provision, pay fine and get away with it. Out of status can mean number of things including "gap between F1 pratical training expiration and H1" and "unauthorized employment".

Newer regulation extends this Jan 1 1998 deadline to Apr 15, 2001 with some more additional requirements.

Am I correct in this regards ? I appreciate your response.

[deepate]

Thanks for your input on this matter guys!

Well I do hope that the person who originally posted this is consulting an attorney on these matters.

Based on my knowledge and from what I have found from my seach on internet, I can say the following:

1: If a person's i-94 is stamped D/S, then he is never considered unlawfully present unless he is ordered by INS to leave. If he does not leave after ordered by INS, then all days following that order are counted towards unlawful presence.

2: If a person leaves US after having been unlawfully present for less than a year and return with a valid visa, 3 year/10 year does not apply to him.

Actually, there are several conditions under which 3 year/10 year bar does not apply.

According to new regulations introduced on dec 21, 2000, if a person is out of status (even for more than 180 days) and was present in the US on or before Dec 21, 2000. he is eligible to file for AOS under 245 (i) (by paying a penalty) as long as his application is filed by April 30th, 2001. In case of employment-based applications, this means the application for labor certification must be filed before april 30th, 2001. *However*, INS may still deny his application if his previous status violations are serious (there have been cases like this). Also, if that person leaves the US before his i-485 is approved, 3 year/10 year may still apply upon re-entry (even with Advanced Parole). This seems to suggest that such person should not leave until his I-485 has been approved.

I am not an attorney and the above is based solely on the basis of what I have been told/heard/read from other attorneys. So I thought i should share this with you guys as we are talking on this topic.


thx

[ariyamannil]

See my recent posting - http://www.immihelp.com/forum/showth...ght=245%28k%29

245(k) applies only for those who had illegal presence ? Can somebody individually apply for it without any employer involvement if that person is a beneficiary of an I-140 ?