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

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  • federale86
    replied
    Mani rocks. What ya goin' do, what ya goin' do, the ICE man come for you.

    Leave a comment:


  • Mrs. Mani
    replied
    You need to see another (better, maybe established) lawyer. No decent immigration attorney in his/her right mind would have advised you to not extend L1A AND not apply for EAD card. If he's downplaying the HUGE MISTAKE/MALPRACTICE he committed, then he's just trying to cover his a s s and keep you as a client (get more money out of you).

    You will get EAD card if the I-485 is still pending but it's not going to help cover the last 3 years you've been working without any authorization unless your attorney convinces you've been living in the U.S. without working or making any money. Even if you are receiving salary from HK, you are still performing work here without authorization to work here.

    Who is your I-140 sponsor? Is it the the L1A company or completely separate company that you never started working for?

    Also, 245(k) would have applied if there was any unlawful employment etc. before you applied for Adjustment. It doesn't help for unlawful employment after the adjustment is filed.

    Leave a comment:


  • federale86
    replied
    Ooops. RFE are usually the first stept to denial. ICE man come for you.

    Leave a comment:


  • SunDevilUSA
    replied
    Edo: under what basis would you be applying for EAD? The simple act of applying for I-485 does NOT entitle a person to apply for EAD.

    Leave a comment:


  • Edo
    replied
    <BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">of it applying to H1 </div></BLOCKQUOTE>
    What if I apply for work authorization based on ineffective assistance of counsel and try to get nunc pro tunc work authorization ??? Do I have any chance ???

    Leave a comment:


  • SunDevilUSA
    replied
    RJMB: I think that your application for Adjustment of Status (I-485) may be in jeapordy.

    I understand that your I-485 application is employment based...and, as such, you must maintain legal status in the United States. Your application for I-485 does NOT give you such legal status.

    If your L-1A status has expired, then you appear to be in the country illegally. Furthermore, without legal status, you are barred from adjusting status in the United States.

    I'm sorry to be the bearer of bad news, but I think that your lawyers may not have served you very well.

    Leave a comment:


  • Edo
    replied
    <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

    Leave a comment:


  • RJMB
    replied
    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.

    Leave a comment:


  • Rough Neighbor
    replied
    <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).

    Leave a comment:


  • RJMB
    replied
    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.

    Leave a comment:


  • RJMB
    replied
    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.

    Leave a comment:


  • marmaduk
    replied
    <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?

    Leave a comment:


  • RJMB
    replied
    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.

    Leave a comment:


  • RJMB
    replied
    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.

    Leave a comment:


  • marmaduk
    replied
    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.

    Leave a comment:

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