Interview Experience. Wife out of status

P

PaulK

Registered Users (C)
We had our interview today. The whole experience was a nightmare. Our interviewer was running about 1 ½ late since we were the last couple to be interviewed that day.
Anyway, the bigger problem –
I’m a USC. I had an employment based green card and I had H1B visa before that. We’ve got married with my wife before me filing I-140 , therefore we were allowed to file I-485 for both of us. My wife was on H4 at that time. I’ve got my AOS approved and she got hers denied because she had 187 days of unauthorized stay.
This may get tricky here but here is my wife’s timeline
- Came to US on B1 visa October 2000
- B1 extension approved through July 11,2001
- Applied for F1 on June 28,2001 valid for DOS
- I-20 form shows April ,5th, 2002 as end of study
- Her diploma however is dated January 14th, 2002
- Applied for H4 on July 9, 2002
- H4 approved on September 18th, 2002
INS claimed that she had 90 days gratis period from the date she got her Diploma, plus 180 days allowed by law, plus 7 days of unauthorized stay before her H4 approval. Bottom line is she had 187 days of unauthorized stay and she couldn’t adjust status under 245(c). We received their final decision in Feb, 2006. No appeal was allowed.
Today, the interviewing officer raised the issue again. We traveled to Mexico for a week, while my wife’s AOS was pending. She had her AP of course. That was back in 2005. The IO claims that my wife has triggered the 3/10 year ban at that time because she had already accrued 187 days of unauthorized stay.
My wife never left the country after her AOS was denied in 2006, and she entered the country legally using her AP when we came back from Mexico.
Now, the IO asked us if we can get a letter from the school that her studies did not actually end on January 14th, 2002 as stated on her diploma, but she was engaged in school activities till April, 5th 2002 as listed on her I-20
I’m not sure if the school will issue such a letter. We will try tomorrow, but I still don’t think that the IO is correct.
Any thoughts?
 
The AP does not protect you against a ban from a previous overstay. Many people get trapped in this scenario: spouse is out of status or overstaying for 180 days or more, applied for AOS and AP, USCIS approves the AP despite the overstay/out of status, spouse leaves the US for a brief vacation and comes back and the AOS is denied. This is the reason why her AOS got denied in 2006, because she left the US in 2005 after being out of status for more than 180 days.

The grace period following the expiration of an I-20 is 60 days. After that, she becomes out of status unless AOS is filed. In your case, your wife completed studies on Jan 14 2002, which means you should have applied for AOS within 2 months of that expiration. So the clock started on March 14 2002 and ended on Sept 18 2002 when she got her H4 status, a total span of 6 months and 4 days were out of status.

Did your wife have her H4 when she was adjusting her status? If yes then she was not of status when she left the country for Mexico. The ban would not apply, because her out of status had been ended by the grant of the H4.

You should get a lawyer and argue that fact. Good luck.
 
Guys, please clear something out for me. I am just learning so I really don't have any beneficial advice.

But since the husband is USC. Why does it even matter if the wife was out of status in the past. Aren't immediate relative already forgiven for being out of status?

Someone pls clarify?
 
Yes you are right. Spouses of USC are forgiven for overstays and out of status issues. HOWEVER, they are not forgiven for bans. In this case, the non USC spouse left the US for Mexico while being out of status in the past. This triggered the ban. In the eyes of the USCIS, even though she had a valid H4 when she left the country for Mexico with the AP the ban was still triggered.

If the non US spouse had instead remained in the US after being out of status for more than 180 days, then yes her AOS would have been granted if everything else was ok.
 
Larry572,

Thank you for your input. I see your point.
There are few things that I don't understand. You are saying that my wife had triggered the 3/10 year ban by exiting the US while AOS was pending.
Please keep in mind that the my wife's F1 was for DOS. Under the current law “nonimmigrants admitted to the US for DOS begin accruing unlawful presence on the date the Service finds a status violation while adjudicating a request for another immigration benefit”- see (2)(B) http://shusterman.com/unlawfulpresenceeoscos.html
Therefore the 187 days of unlawful presence should not be counted towards the 3/10 year ban.
On another note please see http://www.uscis.gov/files/nativedocuments/245(k)_14Jul08.pdf
Section (4)(2) expalines what “lawful immigration status” is for 8CFR 245.1(d)(1).
“The regulations define “lawful immigration status” at 8 CFR 245.1(d)(1). In
examining any period where an application for extension of stay (EOS) or
change of status (COS) was ultimately approved, the period during which
the EOS or COS had been pending would be considered, in retrospect, a
period in which the alien was in a lawful nonimmigrant status regardless of
whether the EOS or COS application was timely or untimely filed. The
period would not be disqualifying for section 245(c) purposes, and the
period would not count against any 180-day period under section 245(k).”
The above proves that INS has wrongfully denied my wife’s AOS in first place.

In my opinion, the IO who interviewed us was ill prepared and did not have a good understanding of the law. I think we will be going before an immigration judge where we can argue our case successfully.
 
Lary 572

to answer your question
"Did your wife have her H4 when she was adjusting her status? If yes then she was not of status when she left the country for Mexico. The ban would not apply, because her out of status had been ended by the grant of the H4."

My wife's H4 ended on 08/06/2004 and we traveled to Mexico in June 2005. So , the answer is NO - her H4 had expired prior to the Mexico trip.
The tricky part is that we were not aware of all this. I know it is not a valid excuse, but the INS did not find a vaolation of her status untill Feb 2006.
 
Also,

Lets say that our case is denied and my wife is banned for say 10 years. She has been living in the US for over 10 years now. Can they still deport her? She is married to USC and she is a mother of USC.
What are our options at this point?
Any ideas of what to expect?
 
Wow PaulK,

This is a very interesting situation. Let's try to summarize and develop a timeline to see which status your wife was, during certain time. Maybe you can clarify if there is confusion.

October 2000 => July 11, 2001 ==> B1 status
June 28, 2001 => Jan 14, 2002 ==> F1 status
Jan 14, 2002 => March 14, 2002 ==> Grace period
March 14, 2002 => July 9, 2002 ==> No Status/ Out of status (117 days)
July 9, 2002 => Aug 6, 2004 ==> H4 status
______ => Feb, 2006 ==> AOS pending
Feb, 2006 => Present ==> No Status /Out of Status (Approx. 4 years and 4 months)

I am very new to this so please research more before taking my content into consideration. However, I couldn't resist to help. I am sure you guys have kids and jobs. The "ban" part will throw off everything. Plus mothers are important aspect of any family. So i would hate to see whole family suffer because of careless mistake.

Now, I don't think she triggered any ban. Because as far as i know, 3 year ban is implemented when an individual has over-stayed by 180 days and 10 year is implemented, after over-staying for more than 1 year.

Your wife clearly overstayed only 117 days. Also bans are only implemented once you leave United States. So yes, your wife over-stayed after her feb 2006 AOS denial, but she never left the country so no bans are implemented during that over-stay.

I believe the first AOS was denied because she was ineligible for AOS due to her out-of-status condition.

This time, AOS was not approved because the IO didn't take into account the 60 days grace period acquired in F1 after completion of study. Also, this time, i believe they cannot deny her AOS as she is married to a US citizen (Immediate relative). I believe all her over-stays are pardoned.

This problem can easily be solved by an immigration attorney (I believe). IO may not have researched and calculate all your dates. Your case is confusing and time consuming. Maybe the IO wants everything calculated by an attorney and presented in a summarized fashion so he/she doesn't spend countless hours on a single case. The probably have 10s & thousands of case coming in everyday. Or maybe he/she wanted to halt your case for little longer and have you provide appropriate documents. (i don't know). All i can say is USCIS officers go through rigorous training, they see these cases all the time and so we cannot say they're not aware of these rules. The adjudication is at their discretion.

I sincerely hope and pray that you find an appropriate answer. Please hire an expert attorney and I believe this problem can be easily solved. Wish you all the best.
 
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PaulK said:
Larry572,

Thank you for your input. I see your point.
There are few things that I don't understand. You are saying that my wife had triggered the 3/10 year ban by exiting the US while AOS was pending.
Please keep in mind that the my wife's F1 was for DOS. Under the current law “nonimmigrants admitted to the US for DOS begin accruing unlawful presence on the date the Service finds a status violation while adjudicating a request for another immigration benefit”- see (2)(B) http://shusterman.com/unlawfulpresenceeoscos.html
Therefore the 187 days of unlawful presence should not be counted towards the 3/10 year ban.
PaulK, This is the reason why IO asked you if you can prove that she was not out of status from Jan 14, 2002 to April 5, 2002. You're are eligible for AOS based on 2 conditions that you have not been out of status and not unlawfully present in US. Your wife was not unlawfully present, but she was out of status if she was not enrolled in the school during that time period. I hope you understand what I am trying to say.

On another note please see http://www.uscis.gov/files/nativedocuments/245(k)_14Jul08.pdf
Section (4)(2) expalines what “lawful immigration status” is for 8CFR 245.1(d)(1).
“The regulations define “lawful immigration status” at 8 CFR 245.1(d)(1). In
examining any period where an application for extension of stay (EOS) or
change of status (COS) was ultimately approved, the period during which
the EOS or COS had been pending would be considered, in retrospect, a
period in which the alien was in a lawful nonimmigrant status regardless of
whether the EOS or COS application was timely or untimely filed. The
period would not be disqualifying for section 245(c) purposes, and the
period would not count against any 180-day period under section 245(k).”

You're 100% correct about this and therefore, i believe she is not banned. She didn't accumulate over 180 days before she departed for Mexico. Hence the ban cannot be triggered.

The above proves that INS has wrongfully denied my wife’s AOS in first place.

In my opinion, the IO who interviewed us was ill prepared and did not have a good understanding of the law. I think we will be going before an immigration judge where we can argue our case successfully.
Click to expand...

Just consult an expert attorney and I believe the victory is in your way. (I certainly hope you guys win) :)
 
PaulK said:
Also,

Lets say that our case is denied and my wife is banned for say 10 years. She has been living in the US for over 10 years now. Can they still deport her? She is married to USC and she is a mother of USC.
What are our options at this point?
Any ideas of what to expect?
Click to expand...

This would not happen. Because if you provided the accurate dates, then she only accumulated 117 days.

10 year ban is applied when an individual over 365 days in US.
 
greencard2007,

I appreciate your help and time. All you assumtions are correct except one .We applied for H4 on July 9, 2002, BUT the aproval date is September 18, 2002.According to their count
January 14, 2002 - end of study
March 15, 2002 - grace period ends
September 18,2002 - H4 aproved (out of status 187 dyas between March 15 - Sept 18)

I agree with their count . What I don't agree with is that they take this 187 days into consideration to trugger the ban. The law clearly states that "nonimmigrants admitted to the US for DOS begin accruing unlawful presence on the date the Service finds a status violation while adjudicating a request for another immigration benefit".

Anyway, we will try to get school transcipt showing different "end of study" date and will submit to IO. We can not argue our case before the IO. We will have to go to court and have Immigration Judge hear our case.

Thank you

greencard2007 said:
Wow PaulK,

This is a very interesting situation. Let's try to summarize and develop a timeline to see which status your wife was, during certain time. Maybe you can clarify if there is confusion.

October 2000 => July 11, 2001 ==> B1 status
June 28, 2001 => Jan 14, 2002 ==> F1 status
Jan 14, 2002 => March 14, 2002 ==> Grace period
March 14, 2002 => July 9, 2002 ==> No Status/ Out of status (117 days)
July 9, 2002 => Aug 6, 2004 ==> H4 status
______ => Feb, 2006 ==> AOS pending
Feb, 2006 => Present ==> No Status /Out of Status (Approx. 4 years and 4 months)

I am very new to this so please research more before taking my content into consideration. However, I couldn't resist to help. I am sure you guys have kids and jobs. The "ban" part will throw off everything. Plus mothers are important aspect of any family. So i would hate to see whole family suffer because of careless mistake.

Now, I don't think she triggered any ban. Because as far as i know, 3 year ban is implemented when an individual has over-stayed by 180 days and 10 year is implemented, after over-staying for more than 1 year.

Your wife clearly overstayed only 117 days. Also bans are only implemented once you leave United States. So yes, your wife over-stayed after her feb 2006 AOS denial, but she never left the country so no bans are implemented during that over-stay.

I believe the first AOS was denied because she was ineligible for AOS due to her out-of-status condition.

This time, AOS was not approved because the IO didn't take into account the 60 days grace period acquired in F1 after completion of study. Also, this time, i believe they cannot deny her AOS as she is married to a US citizen (Immediate relative). I believe all her over-stays are pardoned.

This problem can easily be solved by an immigration attorney (I believe). IO may not have researched and calculate all your dates. Your case is confusing and time consuming. Maybe the IO wants everything calculated by an attorney and presented in a summarized fashion so he/she doesn't spend countless hours on a single case. The probably have 10s & thousands of case coming in everyday. Or maybe he/she wanted to halt your case for little longer and have you provide appropriate documents. (i don't know). All i can say is USCIS officers go through rigorous training, they see these cases all the time and so we cannot say they're not aware of these rules. The adjudication is at their discretion.

I sincerely hope and pray that you find an appropriate answer. Please hire an expert attorney and I believe this problem can be easily solved. Wish you all the best.
Click to expand...
 
PaulK said:
greencard2007,

I appreciate your help and time. All you assumtions are correct except one .We applied for H4 on July 9, 2002, BUT the aproval date is September 18, 2002.According to their count
January 14, 2002 - end of study
March 15, 2002 - grace period ends
September 18,2002 - H4 aproved (out of status 187 dyas between March 15 - Sept 18)

I agree with their count . What I don't agree with is that they take this 187 days into consideration to trugger the ban. The law clearly states that "nonimmigrants admitted to the US for DOS begin accruing unlawful presence on the date the Service finds a status violation while adjudicating a request for another immigration benefit".
Click to expand...
You are correct on that aspect. Out of status does not always equate to unlawfully present. Assuming she was admitted as F-1 with D/S, the unlawful presence would not begin automatically when the 60-day grace period ended, it would begin when USCIS made a formal determination of the status violation.

This time, AOS was not approved because the IO didn't take into account the 60 days grace period acquired in F1 after completion of study. Also, this time, i believe they cannot deny her AOS as she is married to a US citizen (Immediate relative). I believe all her over-stays are pardoned.
Click to expand...
This is where you are wrong. Being married to a USC does not protect one from the 3-year or 10-year bans. Upon departing the US and triggering the ban, a noncitizen becomes ineligible for AOS or any visa until the ban is served, unless a waiver is obtained (which is extremely difficult). But fortunately for you and your wife, she did not trigger the 3-year or 10-year ban because she did not have 180 days of unlawful presence before leaving the US in 2005.

Hopefully the document from the school showing the true end date will be enough to satisfy the IO. Otherwise, you'll need to appeal, but I think you have a good chance of winning the appeal if you get a decent lawyer.
 
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Jackolantern said:
You are correct on that aspect. Out of status does not always equate to unlawfully present. Assuming she was admitted as F-1 with D/S, the unlawful presence would not begin automatically when the 60-day grace period ended, it would begin when USCIS made a formal determination of the status violation.


This is where you are wrong. Being married to a USC does not protect one from the 3-year or 10-year bans. Upon departing the US and triggering the ban, a noncitizen becomes ineligible for AOS or any visa until the ban is served, unless a waiver is obtained (which is extremely difficult). But fortunately for you and your wife, she did not trigger the 3-year or 10-year ban because she did not have 180 days of unlawful presence before leaving the US in 2005.

Hopefully the document from the school showing the true end date will be enough to satisfy the IO. Otherwise, you'll need to appeal, but I think you have a good chance of winning the appeal if you get a decent lawyer.
Click to expand...



Interesting point! I need further clarification of how the ban works. I was under the impression that one has to be physically outside the US for the ban to apply.
Also, as you mentioned, the 187 out of status days should be irrelevant at this point since the violation of her F1 DOS status would have begun when USCIS made a formal determination of the status violation. She left the country BEFORE that determination was made; therefore the 187 days should not be counted towards the 3/10 year ban.
 
PaulK said:
Interesting point! I need further clarification of how the ban works. I was under the impression that one has to be physically outside the US for the ban to apply.
Click to expand...
One has to exit the US to trigger the ban, but then the ban remains in effect until the 3 years or 10 years outside the US have been completed, even if one somehow manages to enter the US with a visa or illegally before the end of the 3 or 10 years.
 
See PaulK, according to what Jack is saying. Your wife should be fine.

I just urge you to get a lawyer ASAP. GOD can make the impossible possible. Wish you all the best.
 
greencard2007 said:
See PaulK, according to what Jack is saying. Your wife should be fine.

I just urge you to get a lawyer ASAP. GOD can make the impossible possible. Wish you all the best.
Click to expand...

Thank you guys for your help. My wife just called me to let me know that her school can not give her a different "end of study" date. We will be talking to a lawyer this afternoon. Will let you know what he thinks
 
PaulK said:
Thank you guys for your help. My wife just called me to let me know that her school can not give her a different "end of study" date. We will be talking to a lawyer this afternoon. Will let you know what he thinks
Click to expand...

A "different" end of study date? Isn't the April date the correct one? How was her request worded? If she asked them to "change" something, they're naturally going to refuse. Doesn't her transcript show April 2002?
 
Jackolantern said:
A "different" end of study date? Isn't the April date the correct one? How was her request worded? If she asked them to "change" something, they're naturally going to refuse. Doesn't her transcript show April 2002?
Click to expand...

Well,
Her Diploma is dated January 15th, 2002. Her I-20 has the april date, but I believe they take the Diploma date as "end of study"
 
So she doesn't have a transcript that shows courses until April 2002?

Anyway, it would be wise to send a letter from the lawyer regarding the out of status vs. unlawful presence issue. It may not be enough to convince the IO himself, but at least it should prompt him to send it to a supervisor for review before making the decision.
 
Jackolantern said:
So she doesn't have a transcript that shows courses until April 2002?
Click to expand...

No, she does not. Transcript shows last class January 11th and graduation date January 14th.
The school administrator told her that they can't change dates because their system is linked to INS and INS will see the change and they will be in trouble.
The question now is - did my wife trigger the 3/10 year ban when we took our vacation in Mexico in 2005.

Will see what th lawyer has to say this afternoon.
I may need a second oppinion also
 
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