Out of Status?

[permaudit]

Hello Everyone,

Mine is a typical situation. I was on H1B after my masters and worked for an employer A for the first H1B Term. Employer A made mistakes in filing extension and I had an RFE and eventually the H1B Extension got denied. In the mean time my I-94 expired. He re applied for the H1B extension under nunc-pro-trunc basis, which had an RFE too(My employer misled me, by saying that I can stay till the second H1 is processed. He didn't pay me for the period I stayed though). At this point in time, I left the country and joined a new employer B and applied for a new H1 and am back in the country. Here are the dates for my case.

H1 Extension Applied: 08/12/2011

Received at USCIS: 08/15/2011

Receipt Received: 08/17/2011

H1 (I-94) Expiration: 08/21/2011

Query Received: 08/24/2011

RFE replied on: 09/29/2011

H1 (I-129) Denied on: 10/12/2011

Re-Filed (Nunc-Pro-Tunc): 10/14/2011

RFE again: 11/07/2011

Left out of USA: 11/09/2011

1. Would I be considred out of status from 08/21/2011 (80 days) or 10/12/2011 (28 Days) ?

2. For the period I was out of status, would it affect my GC process?

3. Is there anything I need to do during filing I-140 or I-485? Do I have to metion about it during filing?

Thank you!

[catx]

It is my understanding that you were initially under the 240 day period allowable for H-1B extension processing between 8/21/2011 and 10/12/2011. However, once your H-1B extension was denied you became out of status effective the 8/21/2011 visa expiry date. Regardless of 80 days or 28 days, the USCIS continues to be less and less forgiving with being out of status. It sounds like you did not work past the 8/21/2011 visa expiry date, which could help.

As for I-140, I-485 (green card) process and filings, the denials are on your record, and you need to be 100% honest and truthful in all your immigration matters. The opposite is fraud, illegal, will force you to leave the U.S., and you would likely face a ban from returning, even for a visit.

The best advice is to consult with a qualified, experienced immigration attorney about your out of status time and other questions.

[shandan]

As far as I know USCIS only bothers about your status in the US since your last entry to the United States, if you have been in status since you last entered US, then you should be just fine with your I-485 as far as Out of Status is concerned.

[permaudit]

@catx - Thanks for the reply. As far as notifying the USCIS during this period of stay, I would definitely want to do it. I just need to know how it could be done. i heard that the 245(i) or 245(k) forms are need, so wanted to confirm if its the same. So if my stay is considered illegal/out of status from 08/21/2011. Can I just explain that I was waiting for the decision and then had to leave within the next 25 days as I had to deal with all my belongings in the US before I left the country(Eg> trying to sell my car and stuff like that)?

@shadan - Thanks for the reply!

[permaudit]

It is my understanding that you were initially under the 240 day period allowable for H-1B extension processing between 8/21/2011 and 10/12/2011. However, once your H-1B extension was denied you became out of status effective the 8/21/2011 visa expiry date. Regardless of 80 days or 28 days, the USCIS continues to be less and less forgiving with being out of status. It sounds like you did not work past the 8/21/2011 visa expiry date, which could help.

As for I-140, I-485 (green card) process and filings, the denials are on your record, and you need to be 100% honest and truthful in all your immigration matters. The opposite is fraud, illegal, will force you to leave the U.S., and you would likely face a ban from returning, even for a visit.

The best advice is to consult with a qualified, experienced immigration attorney about your out of status time and other questions.

@catx - I stopped working after 10/12/2011 since that was when I came to know that my extension was denied. My employer/lawyer mentioned that I could work since my case is still under process. So is that considered as illegal now? How can I explain it to USCIS, that I worked only because my employer and the lawyer to told me to ?