Adjustment of Status Rejected
Posted Tue, 01/04/2011 - 21:37 by jackinthebox
Dear Philip,
I'm currently in a legal debacle. I am a Canadian citizen has been living in the United States on a H1-B visa for the last 4 years. I terminated my employment at my employer about 2 months ago and filed for a change of status from a temporary worker to a tourist. I plan to leave the US in 1 month indefinitely.
The application for change of status was denied stating that I failed to explain the reason for my request, why the extended stay would be temporary and the effect the extended stay may have on my foreign employment. I did include this information in a personal statement, so it seems that they didn't even read the personal statement.
Given that it has been denied, I believe I fall into an "out of status" category. Given that I can't appeal the decision, I am considering the following options:
1. Remain out of status in US for 1 more month before flying out - Seems like low risk since I would only be out of status for a month and then leave for a long time
2. Go to Canada and attempt to return as visitor: Seems like higher risk - Given that I have lived in the US for 4 years, the border agent will have reason to question my claim that I will only be a tourist
Could you kindly suggest a course of action and their associated risks?
thanks in advance,
jack
Comments
H1B Change of Status
Hi Jack, thanks for posting your question. First of all just for your information and for the benefit of the other forum members, the process is called "change of status" rather than adjustment of status. Adjustment of status means going from a non-immigrant to an immigrant while change of status means change from one non-immigrant class to another.
With that preliminary clarification out of the way, while I can't give you specific legal advice about what to do, I can speak to some of the issues here which should give you some guidance.
First of all, in order to qualify to change status one must be in lawful status with their current visa. H1B status is valid during the term of he H1B visa plus a grace period of 10 days before and 10 days after its stated validity date. However, if the H1B employment is terminated there is no grace period and the H1B visa holder would be out of status immediately and therefore would not qualify for a change of status. Thus, in order to qualify for change of status an H1B visa holder must apply for change of status before the stated validity period expires or before the H1B employment is terminated.
So, unless you filed the change of status petition before you terminated the H1B employment the petition was a loser from the beginning. It sounds like the USCIS denied your petition on some other grounds but it doesn't really matter.
It sounds like you have been out of status now for at least two months. Being out of status can cause problems when you apply for visas in the future. If you stay in the U.S. beyond the stated expiration date of your H1B visa then you will begin to accrue "unlawful presence" which can have very serious consequences including being barred from returning to the U.S.
The only safe thing for you to do in this situation is return to Canada.
Some comments
Thanks for the detailed reply, I really appreciate the help.
Regarding my change of status application, I did file it before leaving the company. The lawyers at the company told me that my status in the country while waiting on the application would be legal and would be something along the lines of "an applicant of status change."
Now, my I-94, currently states that I am ok to stay in the country for the next 2 years (when my H1b expires). Am I correct that since I have not overstayed my I-94, I will not accrue "unlawful presence?" Or is it that once my employment is terminated, "unlawful presence" begins.
While I agree the safest thing would be for me to return to Canada, it would be very inconvenient to do and I do have a ticket leaving from the United States.
Regardless of where we start counting, it seems that I have been "out of status" or "unlawful present" for at least a week (or 2 months). Given the circumstances, am I fair to assume that there won't be any real consequences to staying 1 more month given how long I have already been here? Isn't it only after being "unlawfully present" for more than 180 days that the authorities start to investigate individuals?
Thanks again for the help,
Jack
Unlawful presence
Hey Jack, with that clarification it sounds like you have this about right. Since you filed before termination of the H1B employment you were not technically out of status until the change of status petition was denied.
You are also correct that unlawful presence is different from being out of status and does not begin to accrue until the expiration of the date on your I-94. You are also correct that the serious consequences for unlawful presence do not come into play until you have accrued 180 days of unlawful presence which does not seem to be an issue for you since your I-94 is valid for another two years.
However, as long as you are out of status and remain in the U.S. you would be subject to removal which would have serious real consequences. It may be that the chances of this happening are slim but the bottom line is that you are in violation of U.S. immigration law and this does have potential consequences.
I don't give specific legal advice in this forum and try to only talk about issues in general legal terms as I am with this issue. However, I would never tell a client in your situation to remain in the U.S. even if the chance of any adverse consequence is likely low--it wouldn't be good advice and would be professionally irresponsible.
In any case, I hope you found this information useful.
Quick trip to the border
Thanks for breaking this down Phil. Your explanation is highly appreciated.
If I were to go to Canada for a quick trip and attempt to return as visitor, do you have any suggestions for insure that the border guard would let me back in?
Thanks again - Jack.
Canadian Border Crossing
Jack, gaining entry as a visitor at the U.S./Canadian border is a crap shoot and is entirely within the discretion of the border patrol officer. The primary issue is essentially always the same--whether or not they think you are likely to return and whether you are truly entering for a non-immigrant tourist purpose. With your situation there are several red flags that might pop up on the radar and make it difficult for you to get back in as a visitor after just a brief stay in Canada.
If you decide to give it a try the best course of action is always to be honest and be ready to back it up with supporting documentation if they ask for it. I don't know all the details of your situation so I can't give you any examples of supporting documents you might present but a return plan ticket is one example. Basically, anything else that you can think of to help convince them that your will return to Canada when you say you will.
Probabilities
Phil - thanks again for your continued assistance.
I'm currently weigh my probabilities for both options. My I-94 will not expire for another 2 years but I suspect that my employer may have notified the authorities that I no longer work for the company.
Could you kindly weigh in on the probability of getting a knock on the door and taken into custody if I chose to remain in the US for another month? When we say that this is unlikely, do you mean like 1% chance of this happening? Could you kindly share in what situations this may occur? If it does, can I voluntarily leave the country at that point?
Regarding the other option, I'm currently guessing that if I attempt to return to Canada and re-enter the country, with a ticket to leave the US in another month, I stand about a 25-50% chance of being turned away. What are your thoughts?
Much thanks,
Jack
Hey Jack, there is really no
Hey Jack, there is really no way to quantify the risk on this. I honestly have no idea but if I had to take a wild guess I'd say that it is probably unlikely that the immigration police are going to bang down your door in the next 30 days. What usually happens is that the out of status person gets stopped or arrested for something else and then the police turn them over to immigration. I would say that is the primary risk. If you were picked up by the immigration folks and placed in removal proceedings, the immigration judge can allow you to depart voluntarily but it is not guaranteed.
Regarding leaving and reentering right away as a visitor, I have even less of an idea on this one but I'll bite and give it a wild guess. I would say that you chances are not good. It is likely that the CBP officer will know that you recently applied for C/S and were denied. I think that alone is enough to make the average border official deny you entry.
You are out of status so I would just recommend that you depart the U.S. as soon as reasonably possible.
Thanks again Phil for
Thanks again Phil for weighing in on the probabilities.
My current understanding is that if INS decides to pursue me - I will be provided with a "notice to appear" for deportation proceedings and cannot be taken into custody at that point unless I have committed a felony. Is this correct?
Also - could I kindly ask if I do receive a "notice to appear" for deportation proceedings, can I just leave the Country at that time and miss the deportation hearing?
Thanks again,
Jack
I don't handle deportation
I don't handle deportation and removal matters so I really don't know. I am sure that the DHS could detain you since you are in violation of U.S. law but in many of the "out of status cases" I think they simply issue an NTA.
If you are issued an NTA and then leave the U.S. before the deportation proceedings are completed I believe you be ordered removed in absentia and that would not be good.
I have one analogy that I think is apt that I leave you with. In Michigan, fishing without a license is a misdemeanor. If one is caught doing this they can be arrested and taken to jail. If found guilty they can be sentenced to up to 90 days in jail. However, in reality, many people fish without licenses and never get caught; of those who get caught few are arrested; and of those convicted few go to jail. But if you fish without a license in Michigan you are breaking the law and risk going to jail for 90 days.