485 RFE on Lawful status for a period where stayed and worked with Receipt# alone for 7 months

[Ramesh Bezawada]

Received RFE for a period of 7 months where I worked with Receipt# alone while extension pending with USCIS.  H1 extension denied and left immediately.  Is any one has any info appreciated if you could share.

H1 filed on time and on pay roll and left immediately once denied. 

is there any USCIS website rule says that we can work up to 240 days when we timely file and adjudication is pending with USCIS.

Thanks,

Ramesh

[newacct]

Employment authorization for 240 days during a pending extension of worker status is provided by 8 CFR 274a.12(b)(20). But that's not relevant here. They are not concerned about unauthorized employment, but about being out of status. Someone is generally ineligible for Adjustment of Status if they have ever been out of status, and a pending extension is not status. Just because you were authorized to work does not mean you were in status. If your extension of status was denied, you were out of status from when your previous status ended.

What category are you immigrating in? If you are immigrating in an employment-based category, INA 245(k) applies (see here), which means you can do Adjustment of Status as long as you have been out of status or illegally employed for less than 180 days since your most recent entry. So if you are immigrating in an employment-based category, and you left the US after your denied extension and re-entered the US on a nonimmigrant visa, then whether and how long you were out of status before then doesn't matter anymore. The admission "resets" the days of being out of status or unauthorized employment for the purposes of INA 245(k). All you need to do is state that INA 245(k) applies, and show that you have been out of status or working illegally for less than 180 days since that most recent admission.

Edited September 7, 2022 by newacct

[Attorney_15]

Someone who is an Employment-Based immigrant - filing an I-485 based on an I-140 - can qualify for approval even when there was a period of time of status, so long as from the last admission to the US prior to filing the I-485 there is not more than 180 days without status / unauthorized employment. However, one is still required and USCIS still customarily asks (as it seems from the posted RFE) that an I-485 applicant provide a complete and clearly documented history of their status in the US including identifying periods when one was out of status or working without authorization prior to the last admission. Importantly, approval of an I-485 is discretionary despite having 245k eligibility and therefore USCIS is technically within the law by denying an I-485 when such evidence, esp. when requested, is not provided.