Interview Experience. Wife out of status

[Jackolantern]

The question now is - did my wife trigger the 3/10 year ban when we took our vacation in Mexico in 2005.

No she didn't, because she was only out of status, not unlawfully present. The problem is that the IO doesn't agree, and she can't produce a document from the school to bring the out of status days below 180.

Will see what th lawyer has to say this afternoon.

This is case where the lawyer being in the interview could have made a big difference; they could have argued against the IO's interpretation of the law. Of course, you could have argued the same thing yourself, but your words aren't going to be taken as seriously as the lawyer's.

 

[PaulK]

I agree with you. We should have hired a lawyer prior to the interview. I argued that the 187 days should not be counted towards the 3/10 year ban. I even brought INS internal Memos and case study to prove my point, but the IO wouldn’t even listen to me. She would have listened to an immigration attorney…maybe!
Anyway, we spoke with a lawyer this afternoon.
He told me that the IO could argue that wife's I485 was not approvable when filed, therefore the AP she used to enter the country was not valid.
His advice was to let the IO deny the case and then go before a judge. I felt that the lawyer's advice was one of greed. He would make good money from us if we went to court.
I'll be talking with a couple more attorneys.
Do you guys know how long does it take for the USCIS to issue Motion to Appear after a denial. My wife will hit her 10 year presence in the US on Oct 12. I want to make sure we have the 10 year rule as an option to stop deportation if this case goes before an immigration judge.

 

[ravi_niu]

F-1 AOS and out of status

PaulK,

I have know some people in the same situation as your wife.

The program end date on the I-20 for F-1 is not important. More important is that the day F-1 or J-1 get their diploma i.e. diploma date 01/14/02, that is the time when the SEVIS gets updated and your wife lost her student status.

She had 60days from the grant of the diploma day to either leave the country or adjust status.

She could only adjust by September 2002 to H4 thereby incuring 187 days of "out of status".

Technically since she did not file for H4 by March when her grace period ended from F-1, and she did it in July 2002 is proof enough to the USCIS that she was awarded the H4 by mistake. Thereby in the eyes of USCIS her H4 itself is not valid. So technically she is out of status from March of 2002.

So you are lucky that she even got the H4 and you guys went to Mexico and she was able to come back. She should have been stopped at the POE. Luckily that didnt happen.

Going forward in 2006 she got denied her AOS. By that time she had left the US for Mexico so her exit itself triggers the Ban. It does not matter if it is a Unlawful status or Unlawful presence question. Had you not gone out of the country, as a spouse of a USC she would have had no problem.

Another interprtation of the law can substantiate that your wife is present here illegaly and since she did not spend any time outside US, her clock will start when she leave US in the future for another 10yrs unless you can get a vaiwer.

Unfortunatley my friends spouse was in the same situation and thing got ugly he was deported by ICE from New York. My friend did hire attorneys but the deportation did go through last year.

 

[Jackolantern]

Do you guys know how long does it take for the USCIS to issue Motion to Appear after a denial.

Sometimes a few days, sometimes never. But the IO hasn't denied the case yet, correct?

My wife will hit her 10 year presence in the US on Oct 12. I want to make sure we have the 10 year rule as an option to stop deportation if this case goes before an immigration judge.

What 10 year rule? The 10 year ban requires spending 10 years outside the US.

ravi_niu does have a point, in that her change to H4 may be considered invalid because she was out of status when applying for the change, and she did not exit the US and reenter with the H4 to reestablish her status. That's a point to discuss with the next lawyer.

 

[PaulK]

Thank you for sharing.

The sad part about it is that we did not know that wife was out of status.

Was your friend's wife present for more than 10 years in the US? Did she have USC child?

PaulK,

I have know some people in the same situation as your wife.

The program end date on the I-20 for F-1 is not important. More important is that the day F-1 or J-1 get their diploma i.e. diploma date 01/14/02, that is the time when the SEVIS gets updated and your wife lost her student status.

She had 60days from the grant of the diploma day to either leave the country or adjust status.

She could only adjust by September 2002 to H4 thereby incuring 187 days of "out of status".

Technically since she did not file for H4 by March when her grace period ended from F-1, and she did it in July 2002 is proof enough to the USCIS that she was awarded the H4 by mistake. Thereby in the eyes of USCIS her H4 itself is not valid. So technically she is out of status from March of 2002.

So you are lucky that she even got the H4 and you guys went to Mexico and she was able to come back. She should have been stopped at the POE. Luckily that didnt happen.

Going forward in 2006 she got denied her AOS. By that time she had left the US for Mexico so her exit itself triggers the Ban. It does not matter if it is a Unlawful status or Unlawful presence question. Had you not gone out of the country, as a spouse of a USC she would have had no problem.

Another interprtation of the law can substantiate that your wife is present here illegaly and since she did not spend any time outside US, her clock will start when she leave US in the future for another 10yrs unless you can get a vaiwer.

Unfortunatley my friends spouse was in the same situation and thing got ugly he was deported by ICE from New York. My friend did hire attorneys but the deportation did go through last year.

 

[PaulK]

The lawyer told me that he can block deportation for someone who has lived in the US for 10+ years.

 

[Jackolantern]

The lawyer told me that he can block deportation for someone who has lived in the US for 10+ years.

I have to wonder on what basis. Looks like another lawyer just trying to take people's money.

Perhaps he is referring to the 245(i) amnesty in 2001, but that would have required having certain paperwork already in place before the deadline in 2001.

 

[PaulK]

Guys,


I really appreciate your comments. This turns out to be a very interesting discussion and I believe it will be helpful to people who find themselves in same situation in the future.



Here is what I don't understand. Why are the 187 days between F1(D/S) and H4 are considered unlawful presence? The H4 was aproved. The law is clear -
"Nonimmigrants Admitted for Duration of Status (D/S). If USCIS finds a nonimmigrant status violation while adjudicating a request for an immigration benefit, unlawful presence will begin to accrue on the day after the request is denied. Similarly, if an immigration judge makes a determination of nonimmigrant status violation in exclusion, deportation or removal proceedings, unlawful presence begins to accrue the day after the immigration judge’s order or the day after the Form I-94 expired, whichever comes first. Note that accrual of unlawful presence does not begin on the date that a status violation occurs, nor does it begin on the day on which removal proceedings are initiated."

The accrual of unlawful presence does not begin until after USCIS finds status violation. In our case that happened on February 25, 2006 when USCIS denied the AOS. Therefore my wife's unlawful presence began on that day and she has not left the country after that day.
What Am I missing here?

 

[LucyMO]

PaulK,

Technically since she did not file for H4 by March when her grace period ended from F-1, and she did it in July 2002 is proof enough to the USCIS that she was awarded the H4 by mistake. Thereby in the eyes of USCIS her H4 itself is not valid. So technically she is out of status from March of 2002.

So you are lucky that she even got the H4 and you guys went to Mexico and she was able to come back. She should have been stopped at the POE. Luckily that didnt happen.

I agree. I questioned the approval of the change of status petition as well. Since it was applied for without a legal status, it was an error on USCIS' part.

Here is what I don't understand. Why are the 187 days between F1(D/S) and H4 are considered unlawful presence? The H4 was aproved. The law is clear -
"Nonimmigrants Admitted for Duration of Status (D/S). If USCIS finds a nonimmigrant status violation while adjudicating a request for an immigration benefit, unlawful presence will begin to accrue on the day after the request is denied. Similarly, if an immigration judge makes a determination of nonimmigrant status violation in exclusion, deportation or removal proceedings, unlawful presence begins to accrue the day after the immigration judge’s order or the day after the Form I-94 expired, whichever comes first. Note that accrual of unlawful presence does not begin on the date that a status violation occurs, nor does it begin on the day on which removal proceedings are initiated."

The accrual of unlawful presence does not begin until after USCIS finds status violation. In our case that happened on February 25, 2006 when USCIS denied the AOS. Therefore my wife's unlawful presence began on that day and she has not left the country after that day.

you are missing the point that you have to be in legal status in order to apply for a change of status. If you are out of status, but have D/S in I-94 you are not incurring unlawful presence, but you cannot apply for a change of status either. USCIS made a mistake by approving it, which they "corrected" later.

 

[Jackolantern]

The accrual of unlawful presence does not begin until after USCIS finds status violation. In our case that happened on February 25, 2006 when USCIS denied the AOS. Therefore my wife's unlawful presence began on that day and she has not left the country after that day.
What Am I missing here?

Generally, if one applies for a change of status from one nonimmigrant status to another, without already being in valid nonimmigrant status, one does not gain legal status by merely having the new nonimmigrant petition approved. The out of status period normally makes it necessary to exit the US and reenter with a visa in order to "activate" the new status. So it could be seen that the H4 status was invalid from day 1, because she did not "cleanse" her status by exiting and reentering.

So if her H4 status was never valid, that means she was not eligible for the I-485 when filed, and the I-485 could be deemed frivolous. When a frivolous I-485 is denied, the unlawful presence accrues all the way back to when the I-485 was filed, unless the individual held a valid nonimmigrant status. That would make her unlawfully present since filing the first I-485.

Note that I am just stretching into a speculative adverse interpretation of the laws; it is possible that the reality is not so bad. But I'm just explaining an adverse possiblity that should be discussed with the next lawyer, in case it might actually be true.

 

[Jackolantern]

If she didn't take that one trip to Mexico, she'd be enjoying her green card approval by now.

That's why it's very important for people with tainted immigration histories to avoid applying for and using Advance Parole, unless they're REALLY sure about how all the rules apply to their situation.

People get a false sense of security when the Advance Parole is approved; they don't realize that they approve Advance Parole for almost EVERYBODY regardless of their immigration history. Getting the Advance Parole approved doesn't mean you'll be let into the US with it, and it doesn't mean you won't later be penalized for using it if they let you in.

 

[PaulK]

Generally, if one applies for a change of status from one nonimmigrant status to another, without already being in valid nonimmigrant status, one does not gain legal status by merely having the new nonimmigrant petition approved. The out of status period normally makes it necessary to exit the US and reenter with a visa in order to "activate" the new status. So it could be seen that the H4 status was invalid from day 1, because she did not "cleanse" her status by exiting and reentering.

So if her H4 status was never valid, that means she was not eligible for the I-485 when filed, and the I-485 could be deemed frivolous. When a frivolous I-485 is denied, the unlawful presence accrues all the way back to when the I-485 was filed, unless the individual held a valid nonimmigrant status. That would make her unlawfully present since filing the first I-485.

Note that I am just stretching into a speculative adverse interpretation of the laws; it is possible that the reality is not so bad. But I'm just explaining an adverse possiblity that should be discussed with the next lawyer, in case it might actually be true.

I will definitely be discussing it with an attorney. However, I don’t see how it is our fault that USCIS screwed up and ultimately approved the H4. We have always been under the impression that our immigration status is valid and legal.
Also, you do have legal status if COS is approved even though it was NOT timely filed. You don’t need to leave the country to regain status.
I may start thinking about I-601 waiver. I can’t find any statistics. Any idea what the I-601 approval probability is ?

 

[PaulK]

I agree that one have to file timely COS. However, the COS was approved (by INS mistake) and they considered my wife back in status according to the IO. The question is only about the days between F1 and H4. So they have not "corrected" anything. If she had less than 180 days between her F1 and H4 she would have been granted permanent residence

 

[Jackolantern]

I will definitely be discussing it with an attorney. However, I don’t see how it is our fault that USCIS screwed up and ultimately approved the H4.

I hear you, but that's how USCIS operates. They make mistakes and then punish you for not recognizing their mistake.

But it is possible they didn't make a mistake. Perhaps they believed your wife was still in valid status when applying for the change of status, and your wife didn't inform them of finishing school, so they approved the H4 based on missing information -- information that wasn't revealed by your wife, if she had put F-1 as her status on the H4 paperwork, instead of admitting to being out of status. You can't blame USCIS for not acting on something you knew but didn't reveal to them.

Also remember the out of status period was in 2002, before SEVIS full implementation in January 2003. So USCIS probably wasn't receiving regular updates from the school in 2002, and thus wasn't aware of her not being in school.

 

[greencard2007]

I hear you, but that's how USCIS operates. They make mistakes and then punish you for not recognizing their mistake.

I don't believe that's true. Even in his case, USCIS approved his wifes H4, but when they are calculating her over-stay, they are not taking into account her "invalid" H4. They are just asking to prove legal status following her graduation till they applied for H4. (187 days).

 

[Jackolantern]

I don't believe that's true. Even in his case, USCIS approved his wifes H4, but when they are calculating her over-stay, they are not taking into account her "invalid" H4. They are just asking to prove legal status following her graduation till they applied for H4. (187 days).

I know the IO in this case wasn't having a problem with the H4. But that IO's knowledge isn't very good, as he was counting the 187 days as illegal presence when it really wasn't. In my post #30 I was just explaining a possible interpretation that might be held by the judge or appeal board; they would say the 187 days wasn't unlawful presence, but they could deem the first I-485 frivolous if they say it was applied for while holding an invalid H4.

Note that I don't actually expect the judge or appeal board to do that. I'm just spelling out a pessimistic interpretation so the possibility can be discussed with the lawyer, and either dismissed because there are precedents against it, or bolster themselves for it in case the lawyer thinks that's how it could really work.

 

[Jackolantern]

PaulK, what is the reason for the discrepancy between her diploma date and the April end date?

Did she receive the diploma in January, and then continued to study until April? Or did she receive the diploma in April or later, and then they backdated the diploma to January? Did she actually study until April, or did the I-20 show April even though she didn't actually study until then?

If she attended classes until April, she might be able to get proof of that from the professors/teachers. They would have either taken attendance or graded assignments and exams during that time. Of course, they might have left the school by now, but they could have also left some records with the school administrators or entered the information into the school's computer system.

 

[PaulK]

PaulK, what is the reason for the discrepancy between her diploma date and the April end date?

Did she receive the diploma in January, and then continued to study until April? Or did she receive the diploma in April or later, and then they backdated the diploma to January? Did she actually study until April, or did the I-20 show April even though she didn't actually study until then?

If she attended classes until April, she might be able to get proof of that from the professors/teachers. They would have either taken attendance or graded assignments and exams during that time. Of course, they might have left the school by now, but they could have also left some records with the school administrators or entered the information into the school's computer system.

She finished her study on January 14,2001. She did not attend school after that. Her I-20 form shows 08/06/2001- 04/06/2002. Here is one interesting point about her F1 status. The school issued the I-20 on 08/06/2001 but forced my wife to start in May. The advisor told her not to worry because the dates on her I-20 is what matters. He was wrong and he was trying to get her to pay the tuition earlier. Anyway, the approval stamp on the I-20 is February 14, 2002 .i.e. one month after her finishing school. The lawyer told us yesterday, that she shouldn’t have started school before the approval of the F1.
He advised us to go to the school again and try to explain that they screwed up. But he doesn't believe we have any legal way to make them change anything.

 

[VisaNutz]

She finished her study on January 14,2001. She did not attend school after that. Her I-20 form shows 08/06/2001- 04/06/2002. Here is one interesting point about her F1 status. The school issued the I-20 on 08/06/2001 but forced my wife to start in May. The advisor told her not to worry because the dates on her I-20 is what matters. He was wrong and he was trying to get her to pay the tuition earlier. Anyway, the approval stamp on the I-20 is February 14, 2002 .i.e. one month after her finishing school. The lawyer told us yesterday, that she shouldn’t have started school before the approval of the F1.
He advised us to go to the school again and try to explain that they screwed up. But he doesn't believe we have any legal way to make them change anything.

In your first post, you mentioned your wife applied for CoS (B1 to F1) on June 28, 2001. How is this possible if the I-20 wasn't issued until 8/6/2001. Do you mean June 8, 2001 or August 6, 2001 by this date?

Also, what do you mean by the school forced your wife to start school? Why did your wife start school without proper documentation?

Btw, the I-20 expiration date is relevant only if the course of study wasn't completed before the date. It's the degree completion date that matters.

 

[PaulK]

In your first post, you mentioned your wife applied for CoS (B1 to F1) on June 28, 2001. How is this possible if the I-20 wasn't issued until 8/6/2001. Do you mean June 8, 2001 or August 6, 2001 by this date?.

You are correct. The I-20 date is August 6, 2001 and receipt date for F1 is June 28, 2001. No idea how that happened.

Also, what do you mean by the school forced your wife to start school? Why did your wife start school without proper documentation?

Because she did not know better. The school advisor told her that it wouldn't be a problem.

Btw, the I-20 expiration date is relevant only if the course of study wasn't completed before the date. It's the degree completion date that matters.

I undestand that now.