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Greg Siskind on Immigration Law and Policy

FRANKEN LIKELY TO BE A YES VOTE FOR IMMIGRATION REFORM

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  1. EAD's Avatar
    Is this true?

    http://www.rreeves.com/articles/immigration_en_10575.php

    So does one have to keep on extending H1 status and cannot be on EAD?
  2. Greg Siskind's Avatar
    There is a section of the new memo that provides an example that seems to indicate this. But I'm not sure USCIS meant precisely what was stated and I've yet to hear of any people who have been put in removal proceedings based on an interpretation like this. Nevertheless, I advise all of my clients to maintain their non-immigrant status when possible during an adjustment of status. I'd talk to your lawyer about this before making any decisions to drop your non-immigrant status.
  3. Legal and no longer waiting's Avatar
    USCIS memo is not a law. I would imagine, even if someone were to be put in removal procerdings based on this interpretation, they would be able to win pretty easily.
  4. rasdsd's Avatar
    whoa, I have been on EAD since 3 years. What should I do now?
  5. rasdsd's Avatar
    Also is this possible in case of Employment Based Numbers?

    http://www.ailf.org/lac/chdocs/lac_020905.pdf
  6. Nonsense's Avatar
    This would contradict all other rules and procedures. When an AP is issued it explicitly allows you to enter the country on a "parole" status. Tat is not a non immigrant visa status any more. When an EAD is issued it explicitly allows you employment based on the EAD. Once USCIS issues these documents it is nonsemse to require an NIV. I don't see how this interpretation can withstand any challenge.
  7. Nonsense's Avatar
    Page 11 and 22 in the memo make it very clear that admission or parole into the US preclude accrual of unlawfulstatus as long as the period authorized by DHS has not expired.
  8. Greg Siskind's Avatar
    The memo has a lot of problematic and contradictory language. For now, we'll have to wait on liaison meetings with AILA and others to get clarification. I can tell you that there has been a trend over the last few years that make maintaining a non-immigrant status advisable. 245(k) was reinterpreted to no longer consider being in adjustment/parole status as a status that would toll the counting of the 180 days under that statute. In the past, USCIS would forgive work that continued for an employer after filing for adjustment of status if the individual's non-immigrant status had expired, but the employment authorization document had yet to be issued. No longer. DHS recently started putting people in to removal proceedings who had allowed their non-immigrant status to lapse while they were in a pending adjustment status and then had their adjustment application denied for one reason or another. In the past, refiling would be possible because of the old 245(k) interpretation. In any case, there are few situations where I would advise a person to not maintain their H-1B or L-1 status.

    Hopefully, USCIS will start to back off some of these unnecessary, unforgiving positions. I don't think they really are saying that you MUST maintain NIV status during an adjustment application. But they have created confusion that needs to be clarified.
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