MarkW

This is the first I've read this thread and I am very sorry you've had such trouble. Did you end up retaining an immigration lawyer? If not, now might be a good time to do so. My thought is that your lawyer might do some creative reading of the law and present a scenario to INS in which the 90-day EAD rule still applies to a petition properly filed but for the harmless error of overpayment. Sometimes this sort of tactic works if only because if INS rejects the proposition out-of-hand and the lawyer (or other lawyers) presses the issue, INS would have to issue a formal opinion on the matter and that could get messy (ie., what if Congress' intent was that the 90-day rule applies in spite of all harmless error?). Good luck.
Mark

Alvena Ferreira

squidburger2 wrote:
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It is probably doable, but he should consult the attorney about all of this. The h1B
is a "dual-intent" visa, which means that he would not be subject to NON-immigrant
foibles. The good news is, if he gets H1B, you could file the I-130 petition for him
and he would retain his H1B status unless/until he used a marriage-based EAD. Since
the h1b would be good for a period of years, you could actually wait for the i-130 to
be approved and then just file the I-485 OR he could return to his home country and
have the interview and enter fully adjusted to resident status. If you worked this
right, and it was over two years since your marriage, he could actually enter AFTER
the 2 year wedding anniversary and immediately get the 10-year green card. See the
attorney, it is worth checking on. God, the things people have to go through in order
to keep their sanity in this process! Isn't it absolutely nutty? Alvena
-----------------------
Doc Steen Site: http://www.mindspring.com/~docsteen/...o/visainfo.htm
=========================================
I am not a lawyer and this is not immigration advice. This is my personal opinion,
gleaned from the previous postings of others, and posted for the purpose of
discussion only. If your case is complicated, then you may need an immigration
attorney. Locate an immigration attorney in your area at: http://www.aila.org
=========================================

Andy Platt

The fee isn't $5000 if I remember rightly - that probably includes the lawyer fees.
But yes, you can expedite a limited number of non-immigrant petitions.

Andy.

--
I'm not really here - it's just your warped imagination.

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[usenetquote2]> >[/usenetquote2]
[usenetquote2]> > Update on Feb. 11. On Feb. 8 Jon's employer offered him the chance to get an H1-B[/usenetquote2]
[usenetquote2]> > visa so that he can begin working. Upside: He could be working in 5 weeks (they[/usenetquote2]
[usenetquote2]> > pay $5000 for expedition of the visa)[/usenetquote2]
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Andy Platt

What do you mean by "the visa waiver would be required". He would be entering on an
H-1B so there wouldn't be a visa waiver.

Andy.

--
I'm not really here - it's just your warped imagination.

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Squidburger2

"Andy Platt" <[email protected]>
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Andy- The visa waiver would be required to refile the I-485, since he would have
withdrawn it once. At least that's what the corporate lawyer said. Mary

Squidburger2

My head is spinning... Thanks to you all for your advice. Now there's a new wrinkle.

Yesterday we found out that the checks for the I485, I131, and I765 have been posted
with the bank and cleared as of the end of last week. This is our proof that the
Seattle INS office has begun processing those forms (the only proof the Seattle INS
office gives). I think this means that we can no longer retract the AOS application,
am I right?

If so, that knocks out the possibility of the H1B again. So now it's up to his
employer if they want to wait the 90 days or so it takes Seattle to issue EADs. If
not, they may fire him. I know that headcount is a big issue for his company and they
don't want to have employees on the books who are not actually working, even though
they aren't paying him since he is on a leave of absence.

I found an interesting website called the "Office of Special Counsel for Immigration
Related Unfair Employment Practices". On one page they have the following tidbit: The
Office of Special Counsel for Immigration Related Unfair Employment Practices ("OSC")
investigates charges of job discrimination related to an individual's immigration
status or national origin.

The three categories of discrimination are:

Citizenship status discrimination--when individuals are rejected for employment or
fired because they are or are not U.S. citizens or because of their immigration
status or type of work authorization. U.S. citizens, permanent residents, temporary
residents, asylees and refugees are protected from citizenship status discrimination.

National origin discrimination--when individuals are rejected for employment or fired
based on their place of birth, country of origin, ancestry, native language, accent
or because they are perceived as looking or sounding "foreign." All work authorized
individuals are protected from national origin discrimination. OSC has this
jurisdiction over smaller employers, not covered by the EEOC.

Document abuse discrimination--when employers request more or different documents
than are required to verify employment eligibility and identity, reject reasonably
genuine-looking documents or specify certain documents over others. All work
authorized individuals are protected from document abuse.

Here is the link: http://www.usdoj.gov/crt/osc/types.html Do you think that his
employer would seriously be breaking a discrimination law if they fired him based on
his immigration status? If so, this could be a mighty powerful deterrent for them
firing him. But I'm not so sure that this would really hold up in a court. If he
isn't legally able to work how can a company be obliged to keep him on?

Thoughts on this? I really value your input. Thanks Mary

Andy Platt

A visa waiver is what you use to come to the US if you don't have a visa (and are
eligible for the visa waiver program). Sounds like your lawyer thinks that abandoning
an I-485 application makes him inadmissible. I'm not a lawyer so I should defer to
him but I won't because I think he/she is *wrong*. If your husband leaves the US his
I-485 is automatically abandoned but he is *not* inadmissable because of this.

Which waiver would have to be filed and when? That would help determine if
your lawyer knows what they are talking about or whether they are just humming
and hawwing.

H-1B is dual intent. So long as he doesn't lie on the visa application, there's no
reason why getting one and then applying to adjust status again should make him
inadmissible.

Andy.

--
I'm not really here - it's just your warped imagination. "squidburger2"
<[email protected]>
[usenetquote2]> > What do you mean by "the visa waiver would be required". He would be entering on[/usenetquote2]
[usenetquote2]> > an H-1B so there wouldn't be a visa waiver.[/usenetquote2]
[usenetquote2]> >[/usenetquote2]
[usenetquote2]> > Andy.[/usenetquote2]
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Andy Platt

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It doesn't change a thing. As I said before, if he leaves the US he will
automatically abandon his I-485 (without prejudice).

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No I do not. Why? Because they would not be firing him on his immigration status but
on his inability to work legally in the US. Big difference. (Notice the wording of
"work authorized individuals"). So it is illegal to hire a US citizen / GC holder
over another alien who has authorization to work (note that there are exceptions to
this, particuarly when the need for security clearance is an issue), it is illegal to
refuse employment based on the future expiry of employment authorization but it is
not illegal to fire someone who no longer has employment authorization - quite the
reverse in fact!

Andy.

--
I'm not really here - it's just your warped imagination.

Onigiri

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not very often immigration intent is presumed by the various gate keepers along the
way {especially when you have a USC spouse ready to file AoS with you } to stop the
alien from entering the USA. The lawyer may not be elaborating the various scenarios;
but may be telling the client of the the worse case scenario.

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Squidburger2

Thanks for the advice Alvena, Andy, Rete, Sean, A. Graham, Onigiri and Michael. You
guys are my lifesaver.

It turns out you are right, the corporate laywers are giving the worst case scenario.
They also believe (erroneously) that once the AOS checks have been cashed that the
H1B path is no longer available.

We made a decision to let them keep believing that, as we think it gives them less
options to play around with. Also, I found out two days ago from our INS contact that
currently Seattle INS is processing the EAD 8-10 weeks after cashing the checks. We
are trying to confirm this, but it would help if we can tell his employer he will be
able to work at some point in March or April. At least it's better than the worst
case estimate which would have been August if Seattle didn't look at his application
for 3 months, then spent another 3 months processing the EAD.

The most important thing to us after all is that we are together, and that he legally
continues this course to get rights in the US.

I hope that Jon can keep his job, but if they choose to fire him they are the ones
losing out on a great employee. We've done some budget work and can survive on my
salary just fine. I guess that's what the I-134 proves too. Although I don't think
the federal poverty guidelines were designed around living in Seattle! : )

I will keep you posted. Thanks again. Mary

Alvena Ferreira

squidburger2 wrote:
    > We made a decision to let them keep believing that, as we think it gives them
    > less options to play around with. Also, I found out two days ago from our INS
    > contact that currently Seattle INS is processing the EAD 8-10 weeks after cashing
    > the checks. We are trying to confirm this, but it would help if we can tell his
    > employer he will be able to work at some point in March or April. At least it's
    > better than the worst case estimate which would have been August if Seattle
    > didn't look at his application for 3 months, then spent another 3 months
    > processing the EAD.
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Has he considered taking a letter from his employer (requesting an EAD for him) along
with the cancelled check to the Seattle INS office and asking for an EAD, just prior
to the expiration of his EAD? Some have tried this at some offices with success.

Alvena

See the Doc Steen site here:
http://www.mindspring.com/~docsteen/...o/visainfo.htm I am not a lawyer, and this
is not immigration advice. The information I provide is mostly gleaned from old
newsgroup posts and visa links on the internet. If you want or need a lawyer, go to:
http://www.aila.org

Squidburger2

    > Has he considered taking a letter from his employer (requesting an EAD for him)
    > along with the cancelled check to the Seattle INS office and asking for an EAD,
    > just prior to the expiration of his EAD? Some have tried this at some offices with
    > success.
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    > Alvena

Hi Alvena- Yes, he has a letter from his employer and tried going to the SEA INS
office on December 20th, just before his stamp EAD expired, and then again on January
26th, after the 90 days past submission of the AOS forms. Both times the officers
didn't even look at the letter.

Thanks for the suggestion, and I'd love to hear more if you have any!

Tomorrow he meets with his employer again, so we may find out whether he has a job or
not. Crossing my fingers...

Squidburger2

Well, it's been a few weeks and here's how things have worked out.

Jon's employer is sending him to the UK to work until he gets his EAD interview. He
was able to get his Advance Parole expedited with a letter from them saying he
needed to leave the country for a business trip. He is leaving on Friday.

We got him a changeable return ticket so that when the notice comes
for the EAD interview (which is really just a fingerprint and get the
card) he will be able to return for it. In the meantime, he'll stay
with his father in England and commute to the company offices there.

Based on Seattle INS listed times for EAD on Matthew Udall's site, it should be about
8 weeks that he will be in the UK. Better than forever.

I wanted to thank you all again for your interest and support. You are a lifeline in
this frustrating and complicated process. Mary (squidburger)

Alvena Ferreira

squidburger2 wrote:
    > Jon's employer is sending him to the UK to work until he gets his EAD interview.
    > He was able to get his Advance Parole expedited with a letter from them saying he
    > needed to leave the country for a business trip. He is leaving on Friday. We got
    > him a changeable return ticket so that when the notice comes for the EAD
    > interview (which is really just a fingerprint and get the card) he will be able
    > to return for it. In the meantime, he'll stay with his father in England and
    > commute to the company offices there. Based on Seattle INS listed times for EAD
    > on Matthew Udall's site, it should be about 8 weeks that he will be in the UK.
    > Better than forever. I wanted to thank you all again for your interest and
    > support. You are a lifeline in this frustrating and complicated process. Mary
    > (squidburger)

This really takes the cake! <headline>"Immigrant has to leave US to work, INS gives
him permission to leave US but not to work."</headline> alvena