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Immigration Issues/Is consular processing possible if I-485/AOS denied?

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Question
Hello Mr.Sung,

If I-485/AOS is denied for reason that individual was out of status(Valid unexpired I-94 but no paystubs for over 10 months from last date of admission) , is it possible to then go for consular processing?

Employer A laid me off and withdrew H1. Before H1 withdrawal was sent, Employer B filed for my H1 transfer. I was not able to find a project for 10 months and hence no paystubs/W2. My I-94 has continuous validity dates never expired. Employer B has obtained 3 yr extension on H1 based on Emp A's approved I-140.

I am in a position to file for I-485/AOS, and am trying to understand what my options are in case I-485 gets denied based on out of status period. If I am issued RFE for paystubs/W2 for this period and cannot provide it, is it grounds for a denial?

I am very skeptical to go for H1 stamping also since there is a possibility they might deny due to past out of status period(Although I have continuous paystubs for 22 months now). My last entry was prior to lay off and hence 245(k) wont apply to me.

A valid documented job offer exists from the peitioning employer A. All other things are in place (police clearance, medical original documents etc).

What are the implications of a denied AOS on CP? Can the consular officer deny the GC based on the same out of status reason?

My attorney has said we will file for I-485/AOS. I am trying to mentally prepare for worst case scenario and hence my question if CP is possible if AOS is denied.

Answer
Sir,

If you have a lawyer I would say you should direct these questions at him.  That's why you hired him.  I hesitate to give much advise because I don't want my advise to conflict with his or her advice and create more confusion.

What I can tell you is that you can make the argument that you were not out of status due to your I-94 being valid.  This argument will go to address Embassy's possilbe accusation that you have been out of status for 10 months on H1b because you were not paid for 10 months.  You also stated that you have 22 months of paycheck stubs, so I am confused as to when the 10 month gap occurred.

I think the only big possible problem at the Embassy for CP is the 3 year bar because you were not paid for 10 months.  However, you do have a valid I-94 so the arguement above should carry you through.

All in all I think it's fine to CP but you should double check with your attorney because if you are found to have a 3 year bar then CP is not a good option for you.  Without reviewing your documentations this is the best I can tell you.

Immigration Issues

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Jack Sung

Expertise

Can answer: Immigration and visa issues Can't answer: Everything else

Experience

Been a practicing immigration attorney for 4 years.

Organizations
Taiwanese American Lawyers Association. American Immigration Lawyers Association. Los Angeles County Bar Association

Publications
Southwestern International Law Journal

Education/Credentials
J.D. from Southwestern Univ. School of Law in 2007. Licensed attorney in California

Awards and Honors
LACBA 2011 Outstanding Public Service Award

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