Attorneys - please comment on this "unlawful presence" memo by USCIS

[sunny1000]

This memo (please see the link below) is being discussed by fellow IV members on the members' thread section. But, I would like to hear the interpretation of the attorneys regarding this memo especially PAGE 10 EXAMPLE 2 and the consequences of being on EAD/AP after filing of I-485, without being in any non-immigrant status such as H1/L1 etc.

http://imminfo.com/resources/unlawful_presence_memo.pdf

Your comments are greatly appreciated and will help calm the nerves of thousands of applicants who are in this situation.

Thanks in advance.


http://imminfo.com/resources/unlawful_presence_memo.pdf

It has already been answered by ImmigrationVoice core team at

http://immigrationvoice.org/forum/fo...tml#post445752

[sunny1000]

Originally Posted by ganguteli

It has already been answered by ImmigrationVoice core team at

http://immigrationvoice.org/forum/fo...tml#post445752

Re-read my post. I am asking for the attorneys' opinion.

Originally Posted by sunny1000

Re-read my post. I am asking for the attorneys' opinion.

My question was why are you not believing in IV core words?

[sunny1000]

Originally Posted by ganguteli

My question was why are you not believing in IV core words?

what are those words exactly?? I don't have access to donor forum. If you like, post them here and I will read it . If not, I will wait the attorney to answer my question.

[chi_shark]

http://www.uscis.gov/files/nativedoc...design_AFM.PDF

Originally Posted by sunny1000

This memo (please see the link below) is being discussed by fellow IV members on the members' thread section. But, I would like to hear the interpretation of the attorneys regarding this memo especially PAGE 10 EXAMPLE 2 and the consequences of being on EAD/AP after filing of I-485, without being in any non-immigrant status such as H1/L1 etc.

http://imminfo.com/resources/unlawful_presence_memo.pdf

Your comments are greatly appreciated and will help calm the nerves of thousands of applicants who are in this situation.

Thanks in advance.


http://imminfo.com/resources/unlawful_presence_memo.pdf

[kiran123]

Originally Posted by sunny1000

what are those words exactly?? I don't have access to donor forum. If you like, post them here and I will read it . If not, I will wait the attorney to answer my question.

Sunny 1000,
I got an answer from one of the attorney saying that:

You can work using your EAD without making any special entry to the US. In other words, if you entered in H-1B status but then changed employers using your EAD, you do not need to leave and make a special entry using Advance Parole.
You don't need to worry about the expiring I-94 unless you want to stay in H-1B status.

Kiran

[sunny1000]

Originally Posted by kiran123

Sunny 1000,
I got an answer from one of the attorney saying that:

You can work using your EAD without making any special entry to the US. In other words, if you entered in H-1B status but then changed employers using your EAD, you do not need to leave and make a special entry using Advance Parole.
You don't need to worry about the expiring I-94 unless you want to stay in H-1B status.

Kiran

thanks.

[saketkapur]

Below is what Ron Gotcher is indicating on his forum:

Re: New USCIS "unlawful presence" memo

--------------------------------------------------------------------------------

Here is what the law provides. This is from an amendment to 8 CFR 245:


Quote:
Adjustment of Status To That Person Admitted for Permanent Residence; Temporary Removal of Certain Restrictions of Eligibility
(March 26, 2001)
66 Fed. Reg. 58, Pages 16383-16390

. . .

What Effect Does a Grandfathering Petition Have on an Alien's Unlawful Presence in the United States if he or she Has Entered Without Inspection or Remained Beyond the Authorized Period of Admission?

The mere filing of a visa petition or application for a labor certification that has the effect of grandfathering the alien has no effect on an alien's unlawful presence in the United States and does not place the alien in a "period of stay authorized by the Attorney General" for purposes of section 212(a)(9)(B) of the Act (8 U.S.C. 1182(a)(9)(B)). Absent some other factor placing the alien in such a period of authorized stay, the alien continues to accrue periods of unlawful presence until he or she properly files an application for adjustment of status. A properly filed application for adjustment of status under Section 245(i) of the Act (8 U.S.C. 1255(i)) places the alien in a "period of stay authorized by the Attorney General" for purposes of section 212(a)(9)(B) and (C) of the Act (8 U.S.C. 1182(a)(9)(B) and (C)). Filing an application for adjustment of status stops the accrual of unlawful presence, but does not eliminate periods of unlawful presence accrued before such filing. [Emphasis added]

I don't care what the non-binding policy memo says, it can't trump a duly promulgated regulation. Indeed, I don't think that they were trying to do that. The problem stems from the fact that the policy memo is a lot of inarticulate babble and is very hard to decipher. In any case, it is a memo, not a statute or a regulation and it must bow in the face of a regulation with contradictory information.
__________________

[saketkapur]

Below is what Ron Gotcher is indicating on his forum:

New USCIS "unlawful presence" memo - Page 2 - Immigration Information Discussion Forum


Re: New USCIS "unlawful presence" memo

--------------------------------------------------------------------------------

Here is what the law provides. This is from an amendment to 8 CFR 245:


Quote:
Adjustment of Status To That Person Admitted for Permanent Residence; Temporary Removal of Certain Restrictions of Eligibility
(March 26, 2001)
66 Fed. Reg. 58, Pages 16383-16390

. . .

What Effect Does a Grandfathering Petition Have on an Alien's Unlawful Presence in the United States if he or she Has Entered Without Inspection or Remained Beyond the Authorized Period of Admission?

The mere filing of a visa petition or application for a labor certification that has the effect of grandfathering the alien has no effect on an alien's unlawful presence in the United States and does not place the alien in a "period of stay authorized by the Attorney General" for purposes of section 212(a)(9)(B) of the Act (8 U.S.C. 1182(a)(9)(B)). Absent some other factor placing the alien in such a period of authorized stay, the alien continues to accrue periods of unlawful presence until he or she properly files an application for adjustment of status. A properly filed application for adjustment of status under Section 245(i) of the Act (8 U.S.C. 1255(i)) places the alien in a "period of stay authorized by the Attorney General" for purposes of section 212(a)(9)(B) and (C) of the Act (8 U.S.C. 1182(a)(9)(B) and (C)). Filing an application for adjustment of status stops the accrual of unlawful presence, but does not eliminate periods of unlawful presence accrued before such filing. [Emphasis added]

I don't care what the non-binding policy memo says, it can't trump a duly promulgated regulation. Indeed, I don't think that they were trying to do that. The problem stems from the fact that the policy memo is a lot of inarticulate babble and is very hard to decipher. In any case, it is a memo, not a statute or a regulation and it must bow in the face of a regulation with contradictory information.
__________________

[bkshres]

Originally Posted by ganguteli

It has already been answered by ImmigrationVoice core team at

http://immigrationvoice.org/forum/fo...tml#post445752

I don't have access to this page. Can anyone please paste whats in this response by core IV team?

Thanks.

[gc_dedo]

Posted on immigration-law.com

"Unlawful Status" for I-485 Applicant Failing to Maintain Nonimmigrant Status in the USCIS Consolidated Memorandum on "Unlawful Presence" Pushes Immigrants to Confusion and Edge

* Some employment-based immigrants have read "out of the context" the part of the USCIS recently released consolidated memorandum on unlawful presence that defines I-485 waiters not maintaining a nonimmigrant status as "unlawful status" and who are subject to removal proceeding, pushing themselves into confusion and fears. In fact, this part of the consolidated memorandum is nothing new in that all along it has been the law that the I-485 applicants who fail to maintain a nonimmigrant status and stay and work on EAD are not nonimmigrants and "not in status." Since an alien in "not in status" (unlawful status) can be subject to removal proceedings, there is nothing wrong with that part of the consolidated memorandum. However, these readers missed another part of the consolidated memorandum that states that because of prosecutorial discretion and related rules, such I-485 applicants are considered "in authorized to stay" (lawful stay). The language "in authorized to stay" not only means that the unlawful presence that triggers bar to admission is "tolled" but also means that such aliens will not be prosecuted for the unlawful status inasmuch as they are in a valid I-485 proceeding. Flip side of the coin of this law is that since such alien is not "in status," once I-485 application is denied, they lose the basis of the "in authorized to stay," and the government can initiate the removal proceedings unless the aliens depart from the country voluntarily. For the reasons, some I-485 applicants have strived to maintain a H or L visa status adamantly against the potential denial of I-485 applications, but it is completely different issue from current misunderstanding within the employment-based immigrant community that the government can start removal proceedings simply because their status is unlawful and they can be subjected to a forced removal from the country simply because they decided not to extend their nonimmigrant status pending I-485 applications. People should stop panicking on this issue.

[rabs]

Originally Posted by gc_dedo

Posted on immigration-law.com

"Unlawful Status" for I-485 Applicant Failing to Maintain Nonimmigrant Status in the USCIS Consolidated Memorandum on "Unlawful Presence" Pushes Immigrants to Confusion and Edge

* Some employment-based immigrants have read "out of the context" the part of the USCIS recently released consolidated memorandum on unlawful presence that defines I-485 waiters not maintaining a nonimmigrant status as "unlawful status" and who are subject to removal proceeding, pushing themselves into confusion and fears. In fact, this part of the consolidated memorandum is nothing new in that all along it has been the law that the I-485 applicants who fail to maintain a nonimmigrant status and stay and work on EAD are not nonimmigrants and "not in status." Since an alien in "not in status" (unlawful status) can be subject to removal proceedings, there is nothing wrong with that part of the consolidated memorandum. However, these readers missed another part of the consolidated memorandum that states that because of prosecutorial discretion and related rules, such I-485 applicants are considered "in authorized to stay" (lawful stay). The language "in authorized to stay" not only means that the unlawful presence that triggers bar to admission is "tolled" but also means that such aliens will not be prosecuted for the unlawful status inasmuch as they are in a valid I-485 proceeding. Flip side of the coin of this law is that since such alien is not "in status," once I-485 application is denied, they lose the basis of the "in authorized to stay," and the government can initiate the removal proceedings unless the aliens depart from the country voluntarily. For the reasons, some I-485 applicants have strived to maintain a H or L visa status adamantly against the potential denial of I-485 applications, but it is completely different issue from current misunderstanding within the employment-based immigrant community that the government can start removal proceedings simply because their status is unlawful and they can be subjected to a forced removal from the country simply because they decided not to extend their nonimmigrant status pending I-485 applications. People should stop panicking on this issue.

When I checked this message in immigration-law.com, I found a new line added at the end.
"Those I-485 waiters who stay and work on EAD rather than H-1B or L-1 visa status should make it sure that they religiously extend their EAD and Advance Parole not to violate the conditions and eligibility for I-485 applications!"

This line was not before. Does it mean that we need to extend our AP even if we don't have any travel plans ?????

Experts please advise.

[aps]

I guess IV got answers to this memo. Those who read that, please explain it.