TVU H4 rejection

[anmev]

Hi,
we had filed H4 for my wife. COS F1 to H4.
We got denial today for her H4 application.

we had joined TVU in 2009 and had requested for CPT. My wife was working non-paid internship.

we had first enrolled part-time when on H4.
Then moved to F1 and enrolled fulltime.
Then we had enrolled for CPT and got a NON-PAID internship.

we were staying at the San Jose address that was provided to TVU.

can you please help with the options we have now.


Regards
-Anmev.

[nkm-oct23]

What was the reason for denial? Exact phrase from USCIS letter would be helpful.

[anmev]

Thanks for the prompt reply.

I only have got the information today through online case notification. I should be getting the USCIS letter in next couple of days.
will update you soon with the reason.

[anmev]

help required asap.

This is the denial decision.



NOTICE OF DECISION

This notice is in reference to the form I-539, Application to Extend/Change Nonimmigrant Status, filed at the California Service Center. The applicant seeks a change of nonimmigrant status to that of a dependent (spouse) H4 of a temporary worker H-1B under 101(a)(15)(H) of the immigration and Nationality Act.

8 C.F.R 248.1 (b) states in pertinent part,
A change of status may not be approved for an alien who failed to maintain the previously accorded status or whose status expired before the application or petition was filed ...

Further, 103.2 (a)(7)(i) states,
An application or petition received in a service office shall be stamped to show the time and date of the actual receipt and, ... shall be regarded as properly filed when so stamped...

United States Citizenship and Immigration Services (USCIS) records show that the applicant's authorized stay expired on March 30, 2010. However, the application was stamped as received by the California Service Center on Jaunuary 27, 2011. It appears that the applicant changed her status to F-1 only for CPT employment. As the school did not require the students to attend, her F-1 status during the entire period at Tri-Valley University is invalid. Therefore, the applilcant is inelegible for the requested benefit and the applicantion is denied.

There is no appeal to this decision. however, pursant to 8 CFR 103.5, a motin can be filed on Form I-290B. Such motion much be accompanied to by the proper fee and filed within 30 days of this notice.

This decision leaved you without lawful immigration status and you are therefore presend in the United States in the violation of the law. you are required to depart the United States. Remaining in the United States without authroization may affect you rability to return to the United States in the future.

=============

I have the below questions:


we joined TVU on H4 - Sept 2009.
we filed COS h4 to F1 - 29th march 2010.
we filed F1 cpt - 11th June 2010.

1. Do we need to depart ASAP ?
2. We have all the assignment copies and project work we attended. we only had a trainee NON_PAID position at a company.
3. Would we be barred from the USA for a certain period of time ? what is the law regarding that ?
4. What are our options

[nkm-oct23]

You got caught up in the TVU scam and USCIS denied your COS request since your wife was not in a valid non immigrant status at the time of COS application. Only option is for her to go out of US and apply for an H1 visa at a consulate - she also might be subject to 5 year bar if she stayed more than 180 days without proper authorization.

[anmev]

ohh .. i missed one important line below. typo mistake.

United States Citizenship and Immigration Services (USCIS) records show that the applicant's authorized stay expired on March 30, 2010. However, the application was stamped as received by the California Service Center on Jaunuary 27, 2011. It appears that the applicant changed her status to F-1 only for CPT employment. As the school did not require the students to attend, her F-1 status during the entire period at Tri-Valley University is invalid. Therefore, the applilcant is s out of status from the grand date of her F-1 status which is March 30, 2010. As such the applicant is inelegible for the requested benefit and the applicantion is denied.

when you say - 180 days.
is that from the date of notice of Denial ? or the mentioned date on the notice.
That is already gone.. if we consider march 30th, 2010

please advise.

[anmev]

how about this sccenario :

I transfer my H1b to another company.
They file my H1b and H4 on premium processing.

in this case, is it legal to stay in the country till this application for H4 is pending decision ?

please advise.

Regards

[nkm-oct23]

If USCIS considers your wife as out of status since March 2010 (more than 14 months!) then your wife will be subject to immediate deportation and 10 year bar from entry into US. I don't think your transferring H1b to another company will help, your wife will still be filing for a change of Status to H4 and USCIS will most likely deny it again.

[shradha_123]

OP,

I believe your wife is 'Out of Status' since march 30, 2010. An 'Unlawful Presence' will trigger 3year or 10 year bars from entering the united states. Going 'out of status' and 'Unlawful Presence' are two different concepts. Her unlawful presence in the US begins on the day USCIS denied her F1 to H4 I539 application.
Consult an attorney for guidance in this particular case..

[kittu2009]

Hi, I am also in the same situation. My h4 expired 8motnhs back. I was with full tension .We checked 2 weeks back. Could you pelase suggest me?

[shradha_123]

Hi, I am also in the same situation. My h4 expired 8motnhs back. I was with full tension .We checked 2 weeks back. Could you pelase suggest me?

Best Way to resolve your status is to make a trip to india and get a new visa. Since F1 is issued for Duration of Status, your unlawful presence begins on the day USCIS deems you to be out of status. If you leave before any formal finding that you didnt maintain status, you wont be subject to a 3 year/10 year bar from re entering the US.

[Ckn]

Hi can you please update your case whether your wife was successful in getting her f1 back by traveling to india. And is her stamping of h4 visa is done. Please reply soon