I-140 approved; I485 pending, RFE ask for EAD or L1 extension, but Do Not Have It

[RJMB]

I'm an L1A, I-140 recently approved; I-485 pending, Request for Evidence asked for EAD or L1A extension, but my attorney did not apply for this when I submitted I485 (L1A visa expired after I485 application)

Went to Federal Plaza to see if I could get an EAD; Immigration officer suggested I apply for EAD on-line and submit the receipt of this and explain the situation in my return correspondence with the RFE

Would anybody know the likely ramifications of this?

I'm doing all this through my attorney, just hoping for some advice from the forum.

thanks in advance

[RJMB]

I'm an L1A, I-140 recently approved; I-485 pending, Request for Evidence asked for EAD or L1A extension, but my attorney did not apply for this when I submitted I485 (L1A visa expired after I485 application)

Went to Federal Plaza to see if I could get an EAD; Immigration officer suggested I apply for EAD on-line and submit the receipt of this and explain the situation in my return correspondence with the RFE

Would anybody know the likely ramifications of this?

I'm doing all this through my attorney, just hoping for some advice from the forum.

thanks in advance

[marmaduk]

Hmm, I'm a bit confused, I assumed this is an employment based since I-140 is involved.... yet you didn't apply for EAD and your L1A already expired... are you still working right now?

[RJMB]

The short answer is 'yes', although I am still paid by my parent company in my original country (Hong Kong); I set up a branch office here in the US on my own, and I am still here. I believe my attorney will respond and say that I'm not officially working here, or words to that effect, and use the proof that I am still paid in HK as evidence of this fact. Point is though that we should apparently have applied for the EAD with the I485, but did not.

[KMcTram]

You could apply for the L extension nunc pro tunc --

[RJMB]

Thanks; that was my attorney's original idea, but they were concerned that the lack of US based salaries might show up in the L extension, and if the adjudicator for the I485 then saw this, more concerns may arise. After consulting another immigration attorney for a 2nd opinion, they suggested I apply for the EAD in person (however, USCIS do not allow this anymore) and so we've applied for the EAD online and will try to explain this to the USCIS with the return of info. Of course, I'm starting to get concerned, as I'm presuming this was just a minor thing that should have been done at the onset.

[marmaduk]

I think its a double jeopardy.
Your AOS is employment based for a future position with the company. You're staying in the US using your L1 visa, which now expired. I suspect the adjudicating officer want to check on how you can be working right now if your L1 visa already expired and there's no EAD. Argument can be made that you're no longer working so no EAD or L1 extension was necessary, but if you're no longer working for the company, and your L1 has already expired, on what basis are you staying in the USA?

After you apply for EAD/L1 extension, I reckon USCIS still would want an explanation about the gap between the expiration of original L1 and when EAD/L1 extension was granted.

[RJMB]

Thanks, I'm certainly hoping so. According to my attorney, they say legally I am OK to be here as I'm under the adjustment of status. Of course, I can see that they're also unsure as they've sought 2nd opinions, which is a little annoying as I specifically asked them if I should extend the L1A when it expired. Thanks for all the advice. I'll keep you posted how this goes.

[RJMB]

Double jeopardy - I thought you had said 'doable'; wishful thinking on my part. Is this situation a reason for the USCIS to reject the I485, or would the USCIS look for further evidence, or perhaps base an approval on mitigating circumstances?

Many thanks.

[marmaduk]

<BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by RJMB:
Double jeopardy - I thought you had said 'doable'; wishful thinking on my part. Is this situation a reason for the USCIS to reject the I485, or would the USCIS look for further evidence, or perhaps base an approval on mitigating circumstances?

Many thanks. </div></BLOCKQUOTE>

Well, that's why your lawyer is cautious now, they don't know what USCIS will do, and neither does the next lawyer. This will be a case by case situation, where different adjudicating officer might come up with a different conclusion. The presence of RFE indicates this particular officer is already aware of the "conflict", which isn't good.

What would the "mitigating" circumstances be?

[RJMB]

Mitigating, well that will have to depend on what my lawyer comes up with; I do not think there was either a specific or compelling reason for not applying the EAD, or extending the L1A, other than that for some reason a mistake was made on our side. The RFE actually also asked for some other info which has not been a problem to arrange (clearer I94 photocopy, TB skin test as opposed to just the xray (much to my doctors chagrin), and a more detailed birth cert); the EAD request was lumped in with this. I can only surmise that either the adjudicator is being particular to the letter of the rule, or we made a mistake which could turn out to be a deal-breaker. Time will tell, but I'll meet my attorney next week to go over our response. Thanks again for the feedback, this forum has proved to be an excellent resource.

[RJMB]

One more question for the forum - if my L1A Visa did expire in July 2006, albeit after my I485 submission (June 2006), will the USCIS class me as working without permission and reject my I-485 based on this?

Thanks again for your help.

[Rough Neighbor]

<BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by RJMB:
One more question for the forum - if my L1A Visa did expire in July 2006, albeit after my I485 submission (June 2006), will the USCIS class me as working without permission and reject my I-485 based on this?

Thanks again for your help. </div></BLOCKQUOTE>

Your attorney may have to refer to Section 245(k) of the Act. You "may" have violated the 180-day clock of unauthorized employment that "could be" a ground for the denial of your I-485. Filing of your AOS (I-485) does "not" stop the 180-day clock from tolling even though it was filed in 06/2006 before your L1 expired in 07/2006.

(This is just an opinion that should not be taken as a binding advice).

[RJMB]

Thanks. I'll be talking to my attorney, plus probably another for a 2nd opinion. I presume the 180 rule under 245K has already expired, and we're reliant on the adjudicator's discretion.

[Edo]

<BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">RJMB </div></BLOCKQUOTE>
Dear RJMB

Please tell me what happened with your case.
I have similar case. I have H1B and it expired on March 2008. I applied for I-140 and I-485. My I-140 was approved but they denied my I-485 stating that my H1B visa expired one year ago and that I did not applied for work authorization. My lawyer was always telling me that I have nothing to wary and that I am not violating my status and never told me that I need to apply for work authorization. When my I-485 was pending USCIS send me a notice to show all documents and only at that time my attorney told me that we need work authorization. We applied for it and received after a few day. However my I-485 was denied because I unlawfully was employed for over a year. Do I have a chance to apply nunc pro tunc for work authorization??? Please help me…

Thanks