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AC21 Portability after 180 days of 485 filing AC21 Portability after 180 days of 485 filing. Changing employers without affecting green card process.

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  #16 (permalink)  
Old 04-18-2008, 10:25 AM
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Default Its illegal.

Quote:
Originally Posted by chris View Post
Is it Legal to record phone conversation without other party consent ?
It is illegal without informing the other party that this call is being recorded. Also, even if its legal, it would not be something admissible in court as evidence because for a recorded phone conversation to be admitted into evidence in courts, it has to be recorded as a wire-tap warrant(sought by police and granted by courts). Even if the police record the conversation in a criminal case WITHOUT a warrant, its useless and cannot be taken into evidence for any purpose.

Best course of action to get him(employer) to state on record that he hasnt paid you is that get him to say that on emails. Emails by defination are on-the-record conversations because email information is captive and static by nature.

According to 8 CFR 245, I think section 245(K), you are eligible to adjust status (thru 485) as long as your "out of status" or "unauthorized work" is less than 180 days since you filed 485.(Search 245 (K) on google)

Make sure you save the last paystub from the former employer and the first paystub from the new employer so that you have evidence that the gap in gainful employment is less than 180 days.

Also, the gaps are cumulative. So if you were out of status for 45 days this time, and then you are out of status for 45 days next year, it all adds up. The counter doenst reset after you leave the country and come back in DURING ADJUSTMENT OF STATUS 485 stage. That counter reset to 0 happens on H1.

However, in the flip side, the good thing about 485 is...IF you are using EAD and not H1, then you are not out-of-status due to lack of employment. But if you are using H1 as your work-authorization after 485 filing, then lack of employment means out-of-status and therefore you must make sure that your cumulative count of out-of-status days is less than 180.
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Last edited by logiclife; 04-18-2008 at 10:27 AM.
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  #17 (permalink)  
Old 04-18-2008, 02:29 PM
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Default

Quote:
Originally Posted by logiclife View Post
However, in the flip side, the good thing about 485 is...IF you are using EAD and not H1, then you are not out-of-status due to lack of employment. But if you are using H1 as your work-authorization after 485 filing, then lack of employment means out-of-status and therefore you must make sure that your cumulative count of out-of-status days is less than 180.
As far as i know, they check your status from last entry till filing 485.

After that you are on AOS.

Comments are welcome.
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  #18 (permalink)  
Old 04-18-2008, 03:40 PM
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Default

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Originally Posted by jchan View Post
It is 245(k). It offers a lot protection to EB immigrants. To summarize, as long as you are being out of status or illegally employed for less than 180 days, it won't affect your AOS. And each time you leave the country and come back, that 180 days counter is reset.

An id named 'unitednations' mentioned this many times on both IV and immigrationportal.com. Sadly, still many people, without knowing this protection, tried to cover their out of status by fraud, which can be a solid ground of denying AOS at later time.
Exactly. It's important to maintain status before you file I-485. After that, if you lose H1, you have AOS status. And yes, 245(k) protects you (but not your employer) if you lose H1 or your EAD expires, as long as you do not accumulate more than 180 days. As long as your I-485 is pending more than 180 days, you are fine to jump the ship.

8 USC 1255(k) Inapplicability of certain provisions for certain employment-based immigrants
An alien who is eligible to receive an immigrant visa under paragraph (1), (2), or (3) of section 1153 (b) of this title (or, in the case of an alien who is an immigrant described in section 1101 (a)(27)(C) of this title, under section 1153 (b)(4) of this title) may adjust status pursuant to subsection (a) of this section and notwithstanding subsection (c)(2), (c)(7), and (c)(8) of this section, if—
(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—
(A) failed to maintain, continuously, a lawful status;
(B) engaged in unauthorized employment; or
(C) otherwise violated the terms and conditions of the alien’s admission.
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  #19 (permalink)  
Old 04-28-2008, 05:01 AM
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Default

Quote:
Originally Posted by Dard-E-Disco View Post
Guys,

Section 245 (K) is complicated and confusing for some of us. I have some questions. Here's my info:

1. I came to the US in 2003 and have never left the country since then.
2. My cumulative bench status (not paid by employer(s)) is just over 180 days. U know how most of these desi employers work - They just dont pay u on bench. So, my payroll was not run during my bench periods with two previous employers.
3. I applied for AOS on July 2 and at that time itself, the bench status was over 180 days.
4. I have recently obtained H1B extension for the next 3 yrs based on my approved 140 (this is just FYI...). Please also note that my I-94 was valid all the time and I was never out of status from an I-94 perspective.

Forget suing or taking action against the previous desi employers who didn't pay on bench as its history (long time ago). Now, that being said here are my questions:

1. Does #2 mean that I was out of status for over 180 days?

2. If the answer to qn. #1 is Yes, then can USCIS send me an RFE on my pending AOS? If Yes, how will the USCIS come to know about it in the first place (that I was not paid for 180 + days)? While adjudicating my 485, will they check ADP with SSN # to get payroll statuses right from the day I entered US? Somehow I fail to comply with the statement that not being paid is out of status. AFAIK, out of status means only if you are not legally working for an employer (i.e without documentation). Being on bench and not paid is more like an employer thing though the employee is legally in status with valid documentation. Is there any document or link that says, if u are not paid by an employer, it makes u out of status for that period of time? Even if USCIS issues an RFE,then its easy for the employee to put the blame on the employer isnt it?

3. I've read that one can reset the 180 day counter by just leaving the country and re-entering, but that should be a lawful entry and not paroled. By that, does it mean that it is a MUST to have a valid H1B stamp on the passport to re-enter?

4. I've read about 245 (K)...but still confused. Does 245 (K) apply only after applying for 485 or does the clock start ticking even before applying for 485 (i.e right from the day u enter US on a H1B)? If one was allowed to apply for 485 though his/her out of status cumulative period was over 180 days, then does that mean that he/she was plain lucky and didn't get caught? Or does that mean that he/she will or could be caught during 485 adjudication?

5. Last but not the least, to overcome any issues in the future, is the safest thing to do, is to use EAD with immediate effect where there is no question of being out of status when not being paid but make sure that u are working while your 485 is being adjudicated (i.e when the date is current)?

Gurus, please advise...

D-E-D
It does appear to be that you have been out of status >180 days. However this is so cumulative in your case, that it might be hard for USCIS to figure it out. Basically if hte IO suspects something, you might get an RFE for all your W-2s. (someone even got one asking for all old payslips). Since your W-2 is going to show a smaller number you would have to explain the difference...
However in your case the 180 days are spread out, and you might just get lucky that its not noticed.

From what I know the travel-resets-out-of-status applies to before filing of I-485. Not sure though, you may want to confirm with a lawyer.
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  #20 (permalink)  
Old 04-28-2008, 09:27 AM
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Default take personal time off letter

Quote:
Originally Posted by gcfordesi View Post
Hi Gurus,

I was out of project for 2 months and my Employer did not run my pay roll for this 1 and half month .I got my EAD 1 month back have a Full time Offer and will Join this company on MY EAD .My worry is will this gap be any problem in future? is it out of status? . Should i Ask my employer for a pay check or at least a relieving letter ? Appreciate your advice .

Thanks in Advance.
Just my thought, since some where in this post string you mentioned money is not the problem then here is my thought!!

if your employer is not willing to pay for the period during your bench, then just to save yourself in future with other complications or unknown issues at least take a personal approved leave letter from your employer stating your date range and dont' forget to mention your loss of pay during the time of your vacation should be quite sufficient to cover yourself down the road....

All the best!!
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  #21 (permalink)  
Old 04-28-2008, 11:00 AM
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Default Unpaid bench time no worries

Guys here is something from Murthy forum ( I am not sure if the links attached work or not but this information is accurate)

I'm about to start a (voluntary) 3-month unpaid LOA, and I asked my company's immigration law firm about the implications of this move on my H1-B status and pending i485 (PD current; TSC; RD - AUG 2007). Since it took me a little while to find a definitive answer (or as definitive as you can get given the discretion allowed to the inspector that's reviewing i485s), I thought this might be useful (if long-winded - sorry).

Being on an unpaid LOA has no impact on H1-B status or i485 approval(unless you're out of the country and miss an interview if called, or you're in a situation where they force you to take a "voluntary" unpaid LOA and USCIS finds out and fines the company, but you still end up out of status(that last bit's from what I've read on other posts)).

They did say that getting a new H1 visa stamp or using AP for the first time to re-enter could cause problems. I didn't ask what these 'problems' could be since I entered using AP earlier this year(and my lawyer said I could re-enter the country with no issue while on LOA).

It depends on whether the person is actually in LOA status in the company's records (vs. terminated or separated). If officially on LOA, you are still an employee, and maintaining your status depends on maintaining this legal relationship, not on whether or not you are getting paid.

USCIS themselves clearly say that inactive employees are considered in-status:

Q : Must an H-1B alien be working at all times?

As long as the employer/employee relationship exists, an H-1B alien is still in status. An H-1B alien may work in full or part-time employment and remain in status. An H-1B alien may also be on vacation, sick/maternity/paternity leave, on strike, or otherwise inactive without affecting his or her status

(http://www.uscis.gov/portal/site/usc...0045f3d6a1RCRD)
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