Urgent Help need for I485 NOID

[srekara@yahoo.com]

Hi I got the letter stating below.

Your application for status as a permanent resident was filed with service number XXX pursuant to section 245 of the immigration and nationality Act, as amended.

This is a notice of intent to deny your application.

Section 245 of the act states in part:

a) Status as person admitted for permanent resident on application and eligibility of immigrant visa. The status of an alien who was inspected and admitted or paroled into the us may be adjusted by the attorney general, in this discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if … 2) the alien is eligible to receive an immigrant visa and is admissible to the us for permanent resident …

Section 245 of the Act states in part:

a) Status as person admitted for permanent residence on application and eligibility for immigrant visa; The status of an alien who was inspected and admitted or paroled into the uS may be adjusted by the attorney general, in his discretion for permanent residence if … 2) the alien is eligible to receive an immigrant visa and is admissible to the US for permanent residence ..

Section 212(s)(6)© of the Act states in part:

i) In general. Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) as visa, other documentation or admission into the US or other benefit provide under this Act is inadmissible.

Section 212(i) of the Act states in part:

Nonapplicability of subsec. (a)(6)9C)(i).

1) The Attorney General may, in the discretion of the attorney General, Waive the application of clause(i) of subsection (a)(6)© in the case of an immigrant who is the spouse, son, or daughter, of a US Citizen of an alien lawful admitted for the permanent residence if it is established to the satisfaction of the attorney general that the refusal of admission to the US citizen of such immigrant alien would result in extreme hardship to the Citizen or lawfully resident spouse or permanent of such an alien …

During your interview, on XX date, you testified under oath to an officer of this service that you entered the US on XXdate, using an H1B that was issued on XXdate. The H1B visa was issued for a Programmer Analyst Position at XXcompany. During your interview, you also stated that you were notified by the petitioning company, xx Company while you were stillin XXcountry, that the position no longer existed.

Therefore, the Service contends that you misrepresented yourself at entry by using an H1b visa that has issued for a position that you and the petitioner knew no longer existed. Due to the fact you misrepresented yourself upon your entry to the US, you are inadmissible to the US under 212(a)(6)9C)(i) of the INA.

In view of the fact that you are inadmissible under section 212(a)(6)©(i) of the Act, your form 485 cannot be granted unless you qualify for a waiver as provided in section 212(i) of the Act. If you intend to apply for such a waiver, file Form I-601, with appropriate fee, at the designated lockbox address which can be found in the Form I-601 instructions. A written statement or any other evidence in support of your request for a waiver may be submitted with the filling of Form I601.

In accordance with Title 8, Code of Federal Regulations, Part 103.2(b), you are here by given thirty days from the date of this letter (33days if this notice is mailed) to offer written evidence in rebuttal. Any explanation, rebuttal, or evidence presented by you will be included in the proceeding. If no explanation, rebuttal or evidence is received witin the time give, a decision will be made based on the record.

Your application for status as a permanent resident was filed with service number XXX pursuant to section 245 of the immigration and nationality Act, as amended.

This is a notice of intent to deny your application.

Section 245 of the act states in part:

a) Status as person admitted for permanent resident on application and eligibility of immigrant visa. The status of an alien who was inspected and admitted or paroled into the us may be adjusted by the attorney general, in this discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if … 2) the alien is eligible to receive an immigrant visa and is admissible to the us for permanent resident …

Section 245 of the Act states in part:

a) Status as person admitted for permanent residence on application and eligibility for immigrant visa; The status of an alien who was inspected and admitted or paroled into the uS may be adjusted by the attorney general, in his discretion for permanent residence if … 2) the alien is eligible to receive an immigrant visa and is admissible to the US for permanent residence ..

Section 212(s)(6)© of the Act states in part:

i) In general. Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) as visa, other documentation or admission into the US or other benefit provide under this Act is inadmissible.

Section 212(i) of the Act states in part:

Nonapplicability of subsec. (a)(6)9C)(i).

1) The Attorney General may, in the discretion of the attorney General, Waive the application of clause(i) of subsection (a)(6)© in the case of an immigrant who is the spouse, son, or daughter, of a US Citizen of an alien lawful admitted for the permanent residence if it is established to the satisfaction of the attorney general that the refusal of admission to the US citizen of such immigrant alien would result in extreme hardship to the Citizen or lawfully resident spouse or permanent of such an alien …

During your interview, on XX date, you testified under oath to an officer of this service that you entered the US on XXdate, using an H1B that was issued on XXdate. The H1B visa was issued for a Programmer Analyst Position at XXcompany. During your interview, you also stated that you were notified by the petitioning company, xx Company while you were stillin XXcountry, that the position no longer existed.

Therefore, the Service contends that you misrepresented yourself at entry by using an H1b visa that has issued for a position that you and the petitioner knew no longer existed. Due to the fact you misrepresented yourself upon your entry to the US, you are inadmissible to the US under 212(a)(6)9C)(i) of the INA.

In view of the fact that you are inadmissible under section 212(a)(6)©(i) of the Act, your form 485 cannot be granted unless you qualify for a waiver as provided in section 212(i) of the Act. If you intend to apply for such a waiver, file Form I-601, with appropriate fee, at the designated lockbox address which can be found in the Form I-601 instructions. A written statement or any other evidence in support of your request for a waiver may be submitted with the filling of Form I601.

In accordance with Title 8, Code of Federal Regulations, Part 103.2(b), you are here by given thirty days from the date of this letter (33days if this notice is mailed) to offer written evidence in rebuttal. Any explanation, rebuttal, or evidence presented by you will be included in the proceeding. If no explanation, rebuttal or evidence is received witin the time give, a decision will be made based on the record.

My questions:

1) At present I am having H1B and EAD. I never Used my EAD. If 485 deny I can continue with H1B or I need to go back?

2) I applied 485 as a dependent. My wife got the GC.

3) This is happen because of my employer gave me the details when Department of Home Land Security officials called me long back. So never think about this going to happen now what is my situation?

4) Which way is better to proceed either appeal the NOID or apply for I-601?

5) If I have to file I-601 I don't see any Hardships except my wife (GC holder) and kid(USC) is alone in USA.

there is no health issues I can. But I can expose like she will be mentally and physically is going to depress when I leave the country.

Please suggest me.

Thanks in Advance,

Srek

[Belle]

You need a lawyer, pronto. In fact, you should have brought a lawyer with you to the interview, which is obviously is the source of your problem.

1) Your H1B is invalid. You may have to go back and re-enter. Don't leave the country before you speak to a lawyer. Better yet, speak to two.

2) You are inadmissible, not she.

3) You might be screwed forever. I am not kidding.

4) It will be denied. You can try it to prolong your time in the US, but ultimately, this dog won't hunt.

My question is whether you are subject to admissibility bars. If not, you may file for consular processing in your home country.

Again, this is not a trivial problem, and yes, you may be deported and never let into the US again. You need a lawyer. A good one. The kind that don't come cheap.

[srekara@yahoo.com]

Hi Belle,

Thanks for the response. I haven't did any wrong based on my eatery in USA. When I get the approval from my employer then only I came to usa. I have emails which shows the conversations with me and my employer.

Yes I hire the lawyer who filled for my wife and me.

I have all expense refunds bills and letters which they sent me when I came to USA.

This will help some what to me?

for your question

My question is whether you are subject to admissibility bars. If not, you may file for consular processing in your home country.

I am not sure how I can answer this.

Thanks & Regards,

Chandra.

[Belle]

That's why you need a good lawyer. The USCIS charge is that you misrepresented your circumstances when you entered. You should review the documents you have with your lawyer to understand a) whether your job existed when you entered the US and b) if it did not whether you knew about it and whether you undeerstood that you were not supposed to enter on H1 if the job no longer existed.

Here is your charge: "During your interview, you also stated that you were notified by the petitioning company, xx Company while you were stillin XXcountry, that the position no longer existed." I am not sure you have appropriate documents to show it is not true, and even if you do, the company may have informed you by phone, in which case there is no paper trail, and thus your statement in the interview is the testimony.

You also need to have a plan in case your petition is denied and you can't win on appeal.