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hciniluk's Immigration Cases

I was always fascinated by the absurd that accompanies US EB immigration. Not disclosing the details of the labor? "Employers property"? Does this "property" worth anything without a person it was filed for - does it worse a penny without you - an employee? If we provide our labor to our employers don't you guys think we have THE RIGHT to know THE TERMS of the employment????? Don't you think it takes TWO to tango? Is this a frickin joke?

And the most funny part is that some H-1B and I-485 guys on this forum is seriously arguing that we have "no right" to know. Are we slaves? Does this make any sense?

And even more funny, if your job does not match the description in the labor - YOU will be out of status! YOU will be punished by USCIS. And because you don't know those term (employer does not provide you a copy, USCIS does not provide you a copy) you have no idea how your close your actual duties to those described in the labor.

A friendly suggestion - learn to read before posting.

If your I-140 has been approved already, no need to wait for the lawyer. Approval notice is not required to file for I-485. A copy of the receipt (or even receipt number) is enough.

If your labor is approved, I would suggest to file (or better e-file) only I-140 with a lawyer. As soon as you get a receipt (in case of e-filing get can print it out immediately) you can file I-485 by yourself with no hassle and get a better control of the situation.

Unlawful presence (if any) got cleared after last re-admission with a valid visa.

No, you can't marry your girlfriend after your i-130 gets approved. You have to be single until your adjustment of status gets approved. You will be able to marry her after you get your green card. Approvals for I-130 don't take that long. Mine took 6 month at Vermont service center. If your priority date will be April 2001 you will be able to file for adjustment of status as soon as your father gets the receipt (usually within a month after filing).

Last but not least.
1.Don't hesitate to ask question and keep us informed.
2. You will be able to file a new application for adjustment of status as soon as your dad will get a receipt for I-130 AND the priority date will be listed as April 2001.
3. I think you will be OK.

1. Not I-131 but I-130.
2. No "if". He has to ask his dad to file I-130 and attach a copy of the approved Labor, a copy of USCIS policy on 245(i), a copy of the dad's approved I-485 and green card, and detailed explanation of the situation.
3. Do yourself a favor and don't hire "good lawyer that does not have experience with immigration" like you did before. Hire a good immigration lawyer like Carl Shusterman. This may cost you $$$ but it will pay off. I would like to repeat: don't hire any lawyer but well known and reputable one.

Print this document and highlight this section for USCIS officer:

http://www.uscis.gov/files/pressrelease/245iCla...

(1) Spouse or Child Relationship Existed at Time of Filing of Grandfathering Immigrant Visa Petition or Application for Labor Certification submitted on or before April 30, 2001. If an alien demonstrates that a spouse or child relationship existed at the time a qualifying petition or application was properly filed on or before April 30, 2001, a principal alien's spouse or child is a grandfathered alien regardless of any subsequent changes in the relationship with the principal alien. This means that a spouse or child remains grandfathered even after losing the status of spouse or child, such as by divorce or the child becoming 21 years of age. Such spouse or child who is grandfathered may seek to adjust status under Section 245(i) on any proper basis, if so qualified.

Since your father is a permanent resident now, and if you are not married, he can file an immigrant petition for you. I don't know if your priority date will be retained as April 2001 (best case scenario) or the counter will start from the beginning. But from the link nindi provided (thank you, nindi) it's clear that you will be eligible for 245(i) as well. If your father files an Immigrant petition for alien relative AND the priority date will be retained as April 2001 then you will eligible for adjustment of status immediately as soon as I-130 he files for you will get approved. The current priority date for your category (family-based 2-B) is 11-01-01 which means that people with priority date from April 2001 are current.

So the question is either you will retain the priority date. If yes, then the fastest and cheapest way is for your father to file for you as an "unmarried son over 21 of the permanent resident".

http://www.murthy.com/news/n_usc245.html

maxff

This might help you.

At the Time the Petition or Application that Conferred 245(i) Was Filed : If a person was the spouse or child of a 245(i) beneficiary at the time that the qualifying immigrant visa petition or labor certification application was filed, that spouse or child remains grandfathered under 245(i) even if couple has divorced or the child has reached the age of 21 since that time. This means that, even if the spouse or child is no longer eligible for derivative adjustment of status, the spouse or child can obtain adjustment of status through any other means available and use 245(i) to achieve this goal.

Last sentence is the most important. Because if the OP has "aged out" and "is not eligible for derivative adjustment of status", he still may file under 245(i), if he is eligible to file his own application/petition.

To my knowledge AC21 does not deal with age issues. It's Child Status Protection Act that protect aged out children. Like was mentioned before most likely he was denied because he aged out before they filed for adjustment of status. But it's better to wait and see the notice. But he may be eligible for approval under 245(i) if he submits his own employment-based application for adjustment of status, which is not possible at this time, because he does not have a degree. Or maybe he can apply as "unskilled worker", but I can't advice on that.

Appreciate the reponse.

Is filing an I290B an MTR. The receipt is titled 'Notice of Appeal'

You asked if you are out of status. If your F-1 is not valid any more, and you don't have any other status (like H-1) you are out of status.

I would like to clarify that you started accumulating unlawful presence from the time your I-485 got denied only if your F-1 is no longer valid, and you don't have any other valid non-immigrant status (like H-1). So far you have only accumulated one month of unlawful presence (from April 2008 till May 2008) and the rest will depend on the MTR results.

If your F-1 is still valid you are in status regardless of the status of your I-485. If F-1 is not valid any longer, then you are out of status regardless of the status of your I-485, and started accumulating unlawful presence (UP) time from the date your I-485 got denied. To the best of my knowledge as long as MTR is pending you are not accumulating unlawful presence. If your MTR gets denied, most likely your unlawful presence will count from the date your I-485 got denied (in April 2008). The rest your know, if >180 days of UP ban for re-entry for 3 year, if >1 year of UP - ban for 10 years.

That's not what you need. You are not trying to appeal the denial. You need to know WHY it was denied. Because

http://www.uscis.gov/files/nativedocuments/revi...

Page 37
(iv) Denials for Cause of Timely Filed, Non-Frivolous Applications for EOS or COS. If a
timely filed, non-frivolous request for EOS or COS is denied for cause, unlawful
presence begins to accrue the day after the request Is denied.

That's really important. Because if your H-1B application fits into this category, you unlawful presence should count from the date your H-1B extension petition got denied, not from the date your I-94 expired and the counter stopped when your filed for I-485. And this period is less than 180 days. I hate generalizations, but it seems like your lawyer is an idiot, who does not even know that there are no 3-year EADs.

The success of your MTR will depend on the reason for your extension of stay denial back in 2005. It's impossible to advice any further without knowing the reason. I'm very sorry they made such a decision after your 485 has been pendng for over 4 years! I think this whole system is fuc--ed up.

Here is the link that you may find helpful. Please scroll down to page 6 which you will find helpful.

http://www.uscis.gov/files/nativedocuments/revi...

At the least it will help educate hciniluk!

It seems like you are so self-centered that you did not even notice that I provided the link to the same document yesterday. I cited two parts of this document and you agreed with me but it turns that you did not read it. Just scroll up and make a habit to read (at least your own links past page 6) before you "educate" somebody next time.

P.S. Since the OP does not want to provide the reason for his H-1B extension denial, any further discussion of this topic does not make any sense.

Thanks for the suggestion, when I will be asking for you advice I will consider that. Any more questions related to the topic?

And why do you care? I'm not seeking your advice here.

Member Profile: hciniluk (243 posts)