Wife and son out of status

[sudesh]

I was on H1B and my wife and son were on H4. We did not know that we had to apply separately to extend their H4 status. They have been out of status for about 8 months. Also, we concurrently applied for permanent status (I-140, 485 and 765).
a) When I applied for the I-485 and I-765 for my wife and son, they were out of status. How does that affect our recently submitted petitions for the I-140, I-485 and I-765?
b) Are their petitions for I-485 and I-765 invalid, due to the fact that they were out of status at the time of filing the petitions?
c) What are the risks and issues involved here?
d) What is the best strategy to resolve the issue?
e) Are my wife and son out of status now?
f) Will there be the 3-year bar applicable to my wife and my son?

Your help will be appreciated.
Thanks

[nkm-oct23]

Originally Posted by sudesh

I was on H1B and my wife and son were on H4. We did not know that we had to apply separately to extend their H4 status. They have been out of status for about 8 months. Also, we concurrently applied for permanent status (I-140, 485 and 765).
a) When I applied for the I-485 and I-765 for my wife and son, they were out of status. How does that affect our recently submitted petitions for the I-140, I-485 and I-765?
b) Are their petitions for I-485 and I-765 invalid, due to the fact that they were out of status at the time of filing the petitions?
c) What are the risks and issues involved here?
d) What is the best strategy to resolve the issue?
e) Are my wife and son out of status now?
f) Will there be the 3-year bar applicable to my wife and my son?

Your help will be appreciated.
Thanks

485 cannot be applied (if applied it might get denied) for those who were out of status on the date of filing.
Your wife is subject to 3 year bar of she has been out of status for more than 6 months. Children are usually not subject to such bar.

CONSULT A GOOD IMMIGRATION ATTORNEY, IT IS WORTH THE MONEY YOU SPEND.

[jaxen]

Generally if you had a valid H1 then your dependents are covered, until you make a trip out of country. If you have plans to go to home country in the immediate future plan for their H4 stamping or else apply for their H4 visas ASAP.
a) Should not affect, other than that INS might send it back and ask you to file with Valid H4 visas. You can reapply with valid H4s
d) I dont think so, Engage a lawyer if you feel uncertain.

[Raj1994]

When you submitted your wife's and son's I-485, how long were they out of status? Was that less than six months. And I assume that your I-140 was an employment based petition.

I heard that section 245(k) allows one to file I-485 even when one is out of status, as long as the out of status is less than six months. I dont know if that applies to concurrent petitions or only to cases where the I-140 was previously approved. And I think the out of status clock stops upon filing the I-485, unless the person works unauthorized.

This is not legal advice. Please do some searches, contact attorneys, and come back to inform what you find.

[lostlife]

If I-140 is denied and the dependents -1485 will also be denied ..In theat the the dependents will be out of status if the H4 is expied...In this case how long the dependent can stay in the US, Will it be a problem if the dependent stays more than one .two months ??...


If the primary applicant has H1B1 then ...does it automatically cover the spouse status as long as you live in the US??