Derivative I-485 RFE on Employment

[mailmy_gc]

Hi

I am derivative applicant, I did not worked in 2007 but G-325 form mistakenly I was entered that Company Name and date is present time.

In April 2007, I applied for H1-B and got approval from company A but which is valid from October 2007. But I did not worked to this company

Today I received RFE that, provide all evidence since your last admission (I went and came back from home country in Dec 2008) authorized by the USCIS, You must submit currently dated letter from your employer starting the date you began employment. This letter should be original and signed by an executive or officer of the organization who is authorized to make or confirm an offer of permanent employment.

I am a derivative applicant. I am not sure why they asked about permanent employment to me.

Please suggest me what to do ?? Do I need to explain the mistake I did during I - 485 or just get letter from the current employer and send ??

thanks,

[seekerofpeace]

This is unheard of....absolutely....goes to show that USCIS is working over time to deny legit candidates a shot at permanent residency through any means.

A derivative EAD need not work.....in this economy which is loosing 500K+ jobs every month lot of primary applicants are out of ork forget about derivative ones.

You may need a lawyer but you should be fine.

By the next bulletin EB2 will move back to Jan 1970 long before most of us were born...or to U category.

I have absolutely no expectation from DHS other than getting RFEs.....RFE will be the name of the game from now on.....it boosts the economy in a way since lawyers and attorneys get to make money at the cost of hapless applicants and FEDEX and UPS also get their cut with all those priority mailings/deliveries.

Time to rethink if it is better to stay in the US as unwanted or be in a country were your skills are wanted.

The US economy as per all indicators are heading for a painful and sustained recession followed by an inflation a situation absolutely detrimental for immigration.

That's my 2 cents.

SoP

[desi3933]

Originally Posted by seekerofpeace

This is unheard of....absolutely....goes to show that USCIS is working over time to deny legit candidates a shot at permanent residency through any means.

A derivative EAD need not work.....in this economy which is loosing 500K+ jobs every month lot of primary applicants are out of work forget about derivative ones
....

You are missing the main point. I-485 applicant MUST be able to support the details entered on G-325 form that is filed with I-485 application.

There is no requirement for dependent I-485 applicant to work, however if any previous (or current) employment is entered on G-325 form, then he/she should be able to support that detail or clarify if wrongly entered.

OP has not mentioned how he/she has "mistakenly" entered those details. There was H1 filed to start work from Oct 1st 2007 and apparently he/she never started working for employer (read unable to find project).

Now, all he/she needs to do is to provide "reasonable" explanation of this "mistakenly" entered employment details.

______________________
Not a legal advice.
US citizen of Indian origin

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[mailmy_gc]

if you read my post clearly, USCIS asked since my last admission has been authorized by USCIS (My last authorized entry in US is only 5 months back i.e December.

USCIS never asked about my previous employments in 2007. So I am confused weather to tell USCIS now about the mistake I made during my I-485 filing or Just don't worry about it.

Any how I am talking to attorney, I will let you guys know as soon as I get get some info, Please give some constructive advises ...

Thanks

[desi3933]

Originally Posted by mailmy_gc

if you read my post clearly, USCIS asked since my last admission has been authorized by USCIS (My last authorized entry in US is only 5 months back i.e December.

USCIS never asked about my previous employments in 2007. So I am confused weather to tell USCIS now about the mistake I made during my I-485 filing or Just don't worry about it.

Any how I am talking to attorney, I will let you guys know as soon as I get get some info, Please give some constructive advises ...

Thanks

Did you enter into US in Dec 2008 on H1/H4 visa or AP? Since AP is not considered as lawful entry under section 245(k).


______________________
Not a legal advice.
US citizen of Indian origin

.

[mailmy_gc]

I never used my H1-B, I worked for another company using EAD, that voids my H1-B status so I used AP to return.

What do you mean it is not lawful entry ??

[morchu]

I believe all USCIS want to check here is, whether you engaged in "un-authorized" employment after your last admittance to US. From your explanation, I believe you dont have to worry too much, just provide the facts. And give your correct employment letter, and copies of "authorization to work" during the period.

If USCIS want specifically to address a discrepancy in G325, the most common procedure is to ask a new g325.

Also the "permanent" wording in the RFE makes me even think that the whole RFE might be a mistake. A lot of new & less experienced officers in USCIS now a days.

[morchu]

It is a "lawful". What he meant is that, it is not an "admittance" as per USCIS terms.
AP is not used for "parole you in". Visa is used to "admit" you to USA.

And for 485 adjudication, USCIS specifially is interested in the period after your last "admitance" to USA (but before filing of 485).

Another way to explain that is that when applying for AP you are requesting permission to travel outside of USA, or to spend temporary time outside USA. When applying for visa you are requesting permission to enter (or re-enter) USA.

[desi3933]

Originally Posted by mailmy_gc

I never used my H1-B, I worked for another company using EAD, that voids my H1-B status so I used AP to return.

What do you mean it is not lawful entry ??

For I-485 under employment based category, applicant can avail 245(k). Under this section applicant can adjust status to Permanent Resident as long as out of status since last lawful entry does not exceed 180 calendar days.

For this purpose only, the last entry counts that was made on non-immigrant visa. What was your previous entry with visa? That will be your last lawful entry for I-485 purposes.

Using AP is valid entry, however, it puts the applicant is parolee status.

I suggest that you follow up with your attorney.

______________________
Not a legal advice.
US citizen of Indian origin

.

[desi3933]

USCIS memo on 245(k)

http://www.uscis.gov/files/nativedoc...k)_14Jul08.pdf

[desi3933]

Originally Posted by morchu

.....
And for 485 adjudication, USCIS specifically is interested in the period after your last "admittance" to USA (but before filing of 485).

....

Incorrect! (marked in green in your post)

The correct statement would be
For I-485 application adjudication, out of status is looked from the date of last lawful entry on non-immigrant visa BEFORE I-485 approval date.


______________________
Not a legal advice.
US citizen of Indian origin

.

[mnq1979]

I am sorry i am posting my query over here because I don’t know how to start a new theread.

I want to ask from gurus that what triggers the USCIS to send the RFE for employment.

Please provide some information on it.

Thanks.

[Prashanthi]

The request for an offer of perm employment is obviously a mistake, not very uncommon for USCIS to makes such mistakes in the RFE. Since they are asking for the information from the date of last entry i would simply give them this information and not go into the details in the G-325 as long as the information that you give them does not conflict with the info in the G-325. With reference to not working on H-1, i need some more facts to give you a response, but if they do find out that you dint work, 245K might help.

[mailmy_gc]

Thank you very much for the advise..

Regarding my H1, My in-laws came to visit us (and some other personel reasons too) I did not started work in October. So I requested my employer to extend my start date to May 2008. Mean while I got job at the current place using EAD. I started using EAD in April - 2008.

[morchu]

Dude, don't argue for the sake of argument. Please go and read 245(k) first.

After filing 485, you cannot just go an re-enter based on a visa to restart your clock.

the period is considered from last admittance BEFORE 485 "FILING DATE" till its decision.

See the below exact wordings from 245(k). Especially the letters in BOLD.
========================
(1) the alien, ON THE DATE OF FILING an application for adjustment of status, is present in the United States pursuant to a lawful admission;
(2) the alien, subsequent to SUCH LAWFUL ADMISSION has not, for an aggregate period exceeding 180 days--
========================

Originally Posted by desi3933

Incorrect! (marked in green in your post)

The correct statement would be
For I-485 application adjudication, out of status is looked from the date of last lawful entry on non-immigrant visa BEFORE I-485 approval date.


______________________
Not a legal advice.
US citizen of Indian origin

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