I485 -- intent to deny

[pilla75]

Here is my situation.
My wife came to the US on H4 (valid for 6 months) in Oct'2000. I did not know that she had to file for H4 when the 6 month period expired. In Jan'2002 I got her passport revalidated by the State Dept. Then we went to India and after that we travelled to Europe couple of times.

Filed I-485 (myself and spouse) Nov'2002. During the filing my attorney said that she was illegal all this time since she did not have a valid visa from May'2001 to Feb'2002. Since she is illegal for more than 6 months she cannot enter the country for 3 years.
My attorney while filing her I485 put a note explaining the situation.
I received my approval last month but last week my attorney received an 'intent to deny' letter on my wife's case. She is going to contest it but says that the chances are slim.
If the case is denied attorney said that she'll file a "Waiver" since all this happenned because of ignorance and there was no intent or necessisity to reside in the country illegally.

My question is what are my other options apart from filing a waiver.
Thanks
Pilla

 

[mnhakeem]

i did not undertand u , when u submit i-485 in 2002 for u and ur at that time ur wife H4 was already expiered ???????
from 2002 till now where is she ??? in US or out of country??????

 

[imwatcher123]

Your descrption about your wife's case is not clear. Did her visa expire after 6 months or I-94 expire and you did not file extension for her? When was her last entry before filing I-485? Did she maintain status since last entry?

 

[pilla75]

This is kind of complicated. Her H4 did not expire in 2002.
Her first visa was issued in Chennai (for 6 months) in Oct'2000. Did not file a H4 after the expiry period instead I got it revalidated from the State Dept. in Jan' 2002.
She is in the US all that time.
Thanks
P

 

[pilla75]

Her visa expired after 6 months, did not file an extension till Jan'2002.
Mailed passport to St. Louis for revalidation in Jan'2002, passport was stamped with a new visa. We went to India in Feb'2002 and came back March'2002. Travelled to Europe couple of times after that.
Her last entry into the US before filing I485 was in Aug'2002.

 

[imwatcher123]

Her visa expired after 6 months, did not file an extension till Jan'2002.
Mailed passport to St. Louis for revalidation in Jan'2002, passport was stamped with a new visa. We went to India in Feb'2002 and came back March'2002. Travelled to Europe couple of times after that.
Her last entry into the US before filing I485 was in Aug'2002.

First of all, onec she entered U.S, visa was irrelevant as long as her I-94 never expired and had maintained status (e.g. did not engange in unauthorized employment). Second, her last entry was Aug 2002, only 3 months before filing I-485, she should be covered by 245(k) in any case. I do not think she should have a problem. What is the exact content of the ITD letter from CIS?

 

[pilla75]

imwatcher123 thanks for your responses.

What the immigration officer says is her visa/I-94 expired in May'2001 and revalidation was not filed until January'2002 (which is 8 months). If it's just 6 months she would have been eligible to pay a fine and become legal. Since it's more than 6 months she have to stay out of the country for 3 years.
From my understanding she can use section 245(k) only if the period is less than 180days.

 

[imwatcher123]

imwatcher123 thanks for your responses.

What the immigration officer says is her visa/I-94 expired in May'2001 and revalidation was not filed until January'2002 (which is 8 months). If it's just 6 months she would have been eligible to pay a fine and become legal. Since it's more than 6 months she have to stay out of the country for 3 years.
From my understanding she can use section 245(k) only if the period is less than 180days.

There are two points your lawyer can argue for your case:

1. Her I-94 expired for 8 months. She was subject to the 3-year bar. That is true. However, she was forgiven for the violation because the State Department revalidated her visa and she was later allowed to enter the country. Had the 3-year bar applied, her visa would not have been revalidated and she would not have been allowed to enter the country at a latter date. I remember there was a similar case in this forum, which got approved with this argument. Try to find it.

2. 245(k) has no fine involved, and per my understanding and from what I read, the 6-month pardon period is not accumulative. It starts from her last LEGAL entry. Since her last entry was only 3-month before she filed I-485, so she should be covered by 245 (k) despite her previous overstay of I-94.

I suggest you consult with a competent lawyer.

 

[saf]

I think imwatcher123 is correct. Try to consult with your lawyer and other lawyers. Also, she is now subject to the 3 years bar since USCIS sent an "intent to deny" notice to you. She must not leave USA until she gets her gc or she will not enter USA for 3 years.

 

[MA_Labor]

Do you have to revalidate your visa once your I-94 expires? What happens in case of H1 extensions? Nowadays you have to go to your home country in order to get your visa revalidated. So what happens if you get the H1 extension approval notice but your I-94 has expired?
My wife and me, both have our visas and I-94s valid until Nov. 2005. Right now we have filed for AOS with 140 approved. The visa on my wife's passport is H4, although she changed her status to H1 and later to EAD. Would we be considered illegal if our I-94 expires?

 

[TheRealCanadian]

Her I-94 expired for 8 months. She was subject to the 3-year bar.

Correct.

However, she was forgiven for the violation because the State Department revalidated her visa

The State Department has exactly ZERO to do with authorizing the stay of aliens within the United States. They grant visas, and a visa is nothing but permission to present yourself at a POE/PFI and request admission to the US. Once you are legally inspected and admitted into the US the visa has no relevance. At that point the I-94 is controlling, and USCIS is the sole arbitrer of your period of valid stay.

Had the 3-year bar applied, her visa would not have been revalidated and she would not have been allowed to enter the country at a latter date.

The re-entry bars are just that, bars to entry. There's nothing precluding DOS from revalidating a visa, or issuing a new one, just like the bars do not preclue USCIS from issuing an AP document. Since the bars are applied automatically by statute, it might be argued that the last entrace was not legal.

Since her last entry was only 3-month before she filed I-485, so she should be covered by 245 (k) despite her previous overstay of I-94.

... and if the last entrance was not legal since she was subject to the 3 year bar, then we might have a serious problem.

See a good attorney.

 

[imwatcher123]

Correct.



The State Department has exactly ZERO to do with authorizing the stay of aliens within the United States. They grant visas, and a visa is nothing but permission to present yourself at a POE/PFI and request admission to the US. Once you are legally inspected and admitted into the US the visa has no relevance. At that point the I-94 is controlling, and USCIS is the sole arbitrer of your period of valid stay.

You are absolutely right that the State Department only issues visas and that it is CIS that authorizes your period of stay. However, if your I-94 expired or if you failed to maintain your status, DOS will not revalidate your visa and you are required to go gack to your home country to apply for a new visa. In the case where the applicant has more than 180 days of unlawful presense, the U.S. embassy in the home country will not issue any visa (IV or NIV) unless a waiver has been obtained or 3 years (or 10 years) have passed.

It is not rare that H4s forget/do not know they need to apply for extension of their own H4 status when their H1 spouses apply for extenison of H1 status. Most think that the H4 status will automatically be extended with H1 status. I think the CIS and DOS are aware of this. That is why I said that DOS may have forgiven her to revalidate her visa, so may the CIS officer at POE to allow her to enter the Country.

 

[TheRealCanadian]

That is why I said that DOS may have forgiven her to revalidate her visa, so may the CIS officer at POE to allow her to enter the Country.

I don't disagree that DOS might have forgiven her in their eyes, or just didn't catch the overstay. All I'm pointing out is that DOS has no authority to forgive the overstay when it comes to the re-entry bar; that's entirely within USCIS' purview.

Re-entry bars are not to be fooled with; any time there's a chance of this happening you need an attorney.

 

[imwatcher123]

Do you have to revalidate your visa once your I-94 expires? What happens in case of H1 extensions? Nowadays you have to go to your home country in order to get your visa revalidated. So what happens if you get the H1 extension approval notice but your I-94 has expired?
My wife and me, both have our visas and I-94s valid until Nov. 2005. Right now we have filed for AOS with 140 approved. The visa on my wife's passport is H4, although she changed her status to H1 and later to EAD. Would we be considered illegal if our I-94 expires?

Each time when your extension or change of status application is approved, there is a new I-94 attached to the approval notice. Once you file I-485, your stay will be legal during the pending period even though your I-94 may have expired.

 

[akatu]

Yuo have to read into 245(k) carefuly

Unlawful presense counts from the last re-entry (lawfully admittence, what is entrance at the POE using valid visa, I-94 is a proof of such lawful admittence) before I-485 was filed. Someone's assamption that if she overstayed before and was subject to bar simply irrelevant scince she was lawfuly admitted in to the US. Such an admittence at the POE is a discressionary decision made by the immigration officer (he could have applied 3 years bar, but if he have not done so, previous violations deemed forgiven.

 

[TheRealCanadian]

Someone's assamption that if she overstayed before and was subject to bar simply irrelevant scince she was lawfuly admitted in to the US. Such an admittence at the POE is a discressionary decision made by the immigration officer (he could have applied 3 years bar, but if he have not done so, previous violations deemed forgiven.

Actually, no - the 3/10 year bars are applied automatically by statute, not by the discretion of the POE. There is simply no discretion on the part of the POE, you are either inadmissible by statute or not.

If they were discretionary, you wouldn't see the problem where folks subject to them must use AOS, not CP, since in such a case when a person showed up with his newly issued immigrant visa the POE would simply waive the bars. The fact that they do not do so in any cases should be a good hint.

My suspicion is that she was admitted in error by the POE not being aware of the bar. Again, this needs legal representation.

 

[akatu]

Ok

Have you head of any single case that visa was revoked after admittion?
I don't think so, unless there was misrepresentation on the part of applicant. Which was not the case in given case.
Secon thing. I read in different forums that new geting new visa can overcome inadmissability. Thus if you are admitted, you are clean. Period

 

[TheRealCanadian]

Have you head of any single case that visa was revoked after admittion? I don't think so, unless there was misrepresentation on the part of applicant. Which was not the case in given case.

If the person was statutorily inadmissible and the POE was not aware of this and admitted them in error, then they can be placed in removal proceedings.

I read in different forums that new geting new visa can overcome inadmissability. Thus if you are admitted, you are clean. Period

If that was the case, then the re-entry bars would have no meaning, and 245i would not be necessary since all those folks who were out of status for months or years would just get their GC via Consular Processing. The fact that they do not do so, and that even good attorneys get nervous and feel the need to tread carefully in the area of the 3/10 year bars, should be a clue that these are not trivial. They are certainly not eliminated just by getting a new visa and re-entering the US.

I tend to have a dim view of using attorneys for routine proceedings. The 3/10 year bars are not routine, and I always suggest at minimum a consultation with a competent immigration attorney to see options and strategies.

 

[imwatcher123]

If that was the case, then the re-entry bars would have no meaning, and 245i would not be necessary since all those folks who were out of status for months or years would just get their GC via Consular Processing.

The immigration and naturilzation act clearly states that no visa (either IV or NIV) will be isuused to those subject to the 3/10 bars unless a waiver of the bar has been obtained from CIS. It is extremely difficult to obtain such waivers. So, the 245i folks won't get their IVs from U.S. consulates overseas if they choose to do consular processing. The CIS officers at POE do have discretionary power, but the 245i folks won't reach POE.

 

[akatu]

These assamptions are simply not true

If a person has previous violations, he/she is subject to 3/10 years bar. But unless there was a mispepresentation of the case (in other words if she bluntly lied on application, which as I believe never happened) if visa is granted by consulate and subsiguently she is lawfuly addmited then it's done, This is the conerstone of 245(k).

Why folks with exercising 245(i) do not use CP?
a)Simply out of fear that they would not be granted with such a visa
b)They might be still turned around at POE.
But in the given case she was LAWFULY ADDMITED with brand new I-94