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Does it make a difference if you have unauthorized work period more than 180 days after filing your I-485 or before the filing?

San Diego, CA |

I have an approved I-140 and Pending I-485 and I didn't know that I have to have an EAD so I never got one, when my H-1b expired my lawyer says its optional to renew it so I didn't renew it, then when we got the rfe for the I-485 we discovered that so we filed an H-1B NUNC PRO TUNC to accommodate the period I had no authorization, the H-1B was approved for only one year not 3 and for consular process not change of status, my question is can I file to reconsider with an expedite request? my lawyer says there is a difference in law between the one who worked without authorization before the filing of the I-485 and after. I am not sure how true is this and can this be used for the I-485 to get it approved ?
Thank you

Attorney Answers 5

Posted

Working without authorization is a problem, for an employment based I-140/I-485, regardless of whether it is before or after filing the I-485.

The above is intended only as general information, and does not constitute legal advice. You must speak with an attorney to discuss your individual case.

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Posted

I80 days unauthorized employment prior to filing the I-485 ... the nunc pro tunc might save you ... but it will probably boil down to someone at CIS in Nebraska (or wherever) making the decision.

Your lawyer sounds competent and is correct when he/she states there is a difference in when/how to count the 180 days.

I suggest that, even if you don't like the situation, you should continue to listen to him/her.

Plus, consular processing, in my mind, is cheaper and better than adjusting status.

PROFESSOR OF IMMIGRATION LAW for over 10 years -- This blog posting is offered for informational purposes only. It does not constitute an attorney-client relationship. Also, keep in mind that this is an INTERNET BLOG. You should not rely on anything you read here to make decisions which impact on your life. Meet with an attorney, via Skype, or in person, to obtain competent personal and professional guidance.

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23 comments

Asker

Posted

I got the H-1B for consular process they didn't grant the NUNC PRO TUNC. and I worked a long period than the 180 days after filing it is years, and they say the consular processing take like a year to be processed and it is very hard for me to live outside USA for a year with 2 kids in school and no income/residence. Do you think I still have a chance if this work happened after filing the I-485? does the approved H-1B make any difference? Do I have to travel to get the stamp ? Can I ask for reconsideration due to the bad situation in my country ? they have unstable political situation over there, a lot of revolutions.

F. J. Capriotti III

F. J. Capriotti III

Posted

Who are 'they' that told you you needed to be out of the US for a year? Whomever they are ... they are WRONG. You pre-process the entire case in advance of the appointment. Thus, with medical and DHL it takes about 5-7 days. I do at-least one Consular Process cases a month .. .I love them. The Consul answers my e-mail and are, mostly, respectful to my clients ... much better than CIS. What country are you from that you believe has a 'bad' situation? Are you in regular communication with the immigration lawyer that works for the employer? Please don't tell us that 'they' are non-attorneys in the HR department.

Asker

Posted

Gaza, Palestinian authority, and my spouse Egyptian, and the consular process will be in Egypt. (you mean the consular process for the I-140 or H-1B takes 7 days?)

Asker

Posted

name check takes so long

Asker

Posted

A lawyer but says it is easier with the CIS than consular with the backlog and the consular doesn't tell much on the procedures and estimate time for processing...etc As you know there is no USA embassy or consulate in Gaza

F. J. Capriotti III

F. J. Capriotti III

Posted

Processing the DS-230 (which 'replaces' the I-485) takes 5-7 days AFTER you have shown up for the appointment. All NVC processing can take place while you are in the US. Yes, Palestine Egypt is a bit unstable ... but it isn't impossible ... like some other countries.

Asker

Posted

I appreciate the time you answer my questions but my RFE due in a few days like 4-5 days and I am in a horrible situation, I can't even think what to do.

F. J. Capriotti III

F. J. Capriotti III

Posted

Name checks take place prior to the appointment at the US Consul.

F. J. Capriotti III

F. J. Capriotti III

Posted

It appears that the lawyer you spoke with doesn't have much Consular experience ... which isn't unusual ... probably less than 10% of immigration lawyers do regular Consular processing. OK, so there aren't many days in which to respond to the RFE. Do you have an appointment to meet with your company's immigration lawyer, or another private lawyer???????

Asker

Posted

All NVC processing can take place while you are in the US. is it before the appointment or after, if it is after how I will enter USA after the appointment ?

Asker

Posted

it is the same lawyer who has my case, did me the H-1B and the I-140 and filed for the I-485 and then asked for a NUNC pro tunc H-1B

Asker

Posted

All I can say is you certainly make a difference, Thank you so much for your help

F. J. Capriotti III

F. J. Capriotti III

Posted

NVC processing is BEFORE the appointment. Let's hope that the nunc pro tunc works or, that the lawyer is able to convert to consular processing quickly.

Asker

Posted

nunc pro tunc wasn't approved, the lawyer says will go with the argument for the i-485 with the fact that the unauthorized employment happened after the filing that's all

F. J. Capriotti III

F. J. Capriotti III

Posted

OK, Listen to your lawyer ... you're in good hands and I have other people to consult with. Good luck.

Asker

Posted

I am an EB-3, and my priority date for I-485 is may 2007, the nunc pro tunc wasn't granted as I told you it is approved to be consular processed H-1B

F. J. Capriotti III

F. J. Capriotti III

Posted

Listen to your lawyer ... you're in good hands and I have other people to consult with. Good luck.

Asker

Posted

The lawyer doesn't recommend the consular process for the I-140 and you recommend it, then you tell me to listen to my lawyer who doesn't recommend the consular process. I am confused, should I continue with the argument for the I-485 or my employer ask to do it consular process.

F. J. Capriotti III

F. J. Capriotti III

Posted

You appear to be confused. It is impossible to process an I-140 at a Consulate .. only immigration (CIS) can process the I-140. Sorry if I confused your ... stick with your lawyer ... if the I-485 is denied .. Consular Process always remains as a 'Plan B". Good luck

Asker

Posted

I am glad I listened to you and I am glad you advised me to listen to my lawyer. Thank you so much for the precious advice.

F. J. Capriotti III

F. J. Capriotti III

Posted

U R welcome ... good luck.

Asker

Posted

I got my Green Card Today :) Thanks again

F. J. Capriotti III

F. J. Capriotti III

Posted

Great. All's well that ends well.

Posted

Unauthorized work will damage your gc petition no matter when it happened. I would recommend you go outside the country- after getting an advance parole, getting the H1 stamped and returning. Otherwise apply for a EAD and do not work till you receive it. You can also consider appealing the H1 COS denial and proving extraordinary circumstances to get the H1 start date changed to an earlier date. The last is the what I would recommend.

Business Immigration Attorney. For H, L, J, EB5s, PERM and EB1/2/3 Petitions. Call 800-688-7892 or visit www.ImmigrationDesk.com. Law Office of Anu Gupta. The advice suggested here is for general information only and not to be construed as legal advice.

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F. J. Capriotti III

F. J. Capriotti III

Posted

This is a good suggestion. A new H-based I-94 'cleans' up the unauthorized employment days. But, the person is afraid of their country and could get stuck in administrative processing. Still, it is a good suggestion and this person should talk about it with the company lawyer.

Posted

It is a problem. If you worked without authorization over 180 days, generally, you are not eligible for adjusting your status in the U.S.

This answer is of a general nature and should not be relied upon as final, nor is it intended as legal advice. Consult with a qualified attorney before making any legal decisions. Gen Kimura, (832) 247-6932.

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Posted

Working while unauthorized can render you ineligible for an extension of your H-1B status and ineligible for adjustment of status is the violation exceeded 180 days. It generally does matter whether the violation occurred before or after the I-485 was filed.

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