geeandtee

As long as there's some option available to appeal the decision whether it's a formal motion to reconsider or appeal, I'm OK with that.

I know that my attorney has successfully dealt with some nearly impossible cases in the past, so I'm going to let him tackle it.

I appreciate the information you posted above. It is unbelievable that CIS can behave in this way, mind, I shouldn't really be surprised. They make the former Soviet Union bureaucracy seem like kindergarten.

Folinskyinla

Hi:

Never filed an I-765 at all? That creates some confusion.

The definition of "authorized alien" at 8 CFR 274a.12(c)(9) is somewhat confusing. The section says in the operative part "an alien who has filed an application for adjustment of status to lawful permanent residence ...."

However, there is additional language which states that "for purpose of section 245(a)(8) of the Act" sets forth way to dodge being an unauthorized alien while an adjustment is pending:

1. You obtain an EAD pursuant to the adjustment or
2. You were authorized to work at time of filing the AOS and that authorization does not expire while the adjustment is pending.

Upon meeting either of the two conditions, an adjustment application need not file an application for an EAD.

My clients had filed for and obtained EAD's, so the definition was pretty clear they did not need to keep the EAD valid once they obtained one.

Folinskyinla

Hi:

This particular issue has exploded as of late and the attorney chat boards are aflame.

BTW, I've been long convinced that the Soviet Union was often used as a training tool on how to operate.

Some attorneys are known to compare the DHS to the Gestapo. However, that is a very unfair comparison -- say what you will, the Gestapo followed the rules. We may disagree with those rules, but they did follow them.

BTW, if you can't tell -- I share your outrage.

geeandtee

Hi

I was still authorised to work (unexpired H1-B) when the AOS was filed which is why my attorney said there was no need to renew the H1-B. Given that the AOS was filed about 6 months before the H1-B expired, we were all assuming that we'd receive a decision on the AOS before expiry date. Unfortunately, the filing was during the insanity that was July '07.

Thanks for all your thoughts on this matter. I'm touched that you share my outrage. Also glad that you get my point about the USSR, I travelled there on more than one occasion and studied post-Revolutionary Soviet History. Honestly, I've met friendlier Immigration staff at Moscow airport back in the Bad Old Days.

Ozzidoc

O geeandtee. How stressful. I'm wondering, will your lawyer take any responsibility for the fact that you worked for 18 months or so without employment authorization? Was this fact ever addressed?

My fingers are crossed that something can be sorted out for you!

ian-mstm

I don't see how it's the lawyer's fault. The onus is *always* on the alien to know whether or not they are employment authorized.

Ian

newXgate

How is it not the lawyer's fault in this case ? It is their job to navigate the client through the complexities of the immigration system and to give correct advice. If that is not their role, what is it ? Based on Folinskiya's posting, it seems it is not even clear whether the OP was really working without authorization, so how is a layman supposed to second guess a lawyer if he is specifically told that he will be ok ?

emartin

I agree with Ian that the employee bears the ultimate responsibility of always ensuring that they have work authorization. However, if there is a lawyer involved, it is very surprising that he didn't track expiration dates and at least advise the foreign national on how to maintain work authorization.

G&T says in one post
"It appears that I have been working without authorization since my last H1-B expired. I remember having a conversation with the attorney at the time asking when it should be renewed. He told me that there was no need because the I-485 had been filed."

Hopefully G&T misunderstood the attorney, because otherwise the attorney was wrong. Having a 485 filed does not automatically grant work authorization. It allows a person to remain in the US, but not to work. G&T needed a H-1B extension or EAD to remain work-authorized.

In addition to G&T working without authorization, the employer was in breach of I-9 regulations in employing someone without the correct documents. Once G&T's H-1B expired, the employer should have been asking for updated employment eligibility documents to reverify the I-9.

At the end of the day, however, G&T working without authorization after the 485 was filed should not alone have been grounds for denial. Section 245(k) of the Immigration and Nationality Act allows a person to adjust status if they have not violated status for more than 180 days since last lawful entry before filing the 485.

Noorah101

I wonder why Mr. Folinsky thinks differently?

Rene

geeandtee

thanks for the advice, frankly I think that's a bit cold in the circumstances but I'll bear it in mind and make sure he handles my deportation stuff properly

I'm inclined to agree with Folinsky given that he's seen a rash of similar denials. At the time of filing, no one knew that it was going to take two years to get around to processing the AOS instead of the normal 180 days. We filed in July of '07 along with loads of other people, I suspect that one of the reasons for this slew of erroneous denials is based on the fact that there's more applicants than there are EB-3s and, even when the new fiscal year starts, my theory is that there will be more applicants than visas available.

Just a thought.

ian-mstm

Now you're thinking properly. Being put in removal procedures will actually *HELP* you.

Ian

geeandtee

Just an update: Attorney has been doing a lot of head-scratching, research, etc and is filing a motion to reopen tomorrow. He sent me a copy of his argument and it seems like a pretty impressive defense. There's some case law thrown in to support the arguments. It's the first time he's come across this (in spite of working for CIS for several years.)

Soooooooooo, back to waiting we go.

dbj1000

I have nothing to say that is of any help, G&T, but I just wanted to say how much I feel for you in this hellish saga, and I wish you the very, very best of luck in getting it resolved. I get stressed and angry just thinking about what you've been through. Good luck!

geeandtee

Thank you, you're very kind.
I'm just glad I have a good attorney. He's a bit like a dog with a bone with things like this, so I know he's doing the best that he can.
I get pissed off too. I'm very lucky that my employer is very supportive over the whole thing, not to mention quite a few friends here who have written to senators and congressmen. It makes us feel quite a bit better, whatever the outcome.

Folinskyinla

Hi:

I don't think differently. However, what NSC is doing is applying rules for PRE-filing bars when there is POST-filing unauthorized employment.

Also, the boilerplate I have seen quotes an internal manual which is 1) not legally binding 2) does not support CIS position and 3) canNOT be found in the manual which is posted on the CIS website!