140/485 denied in August, 180 days are due - should we leave

[Dev_recruit]

Thanks for your response guys, Here is my whole case

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I had some questions regarding our Green card application.

I was in US on H1 visa since 1998 and my visa ended on Dec 2004. My wife completed her Masters Degree in Physical Therapy from NJ, and we applied for GC in Nov 2004 through my wife's employer on Physical Therapy background. As she falls into Nurses and Physician's category we did not have to apply for labor.

Now our 140, 485, AP, and EAD were applied in Nov 2004. So we stayed back in US on AOS 485 after Dec 2004 as my H1 visa was over. We received our work permit and AP in Dec. We both were working since then.

In May 2005 we received first RFE on I 140 and that was about the employer's financial status and they asked for Tax returns. The Lawyer replied to that with tax returns. Also they inquired about Form 750A from lawyer which specifies labor category and asked for my wife’s Physical Therapy license, which was also submitted by lawyer

In August 2005, the employer and attorney received a letter with denial on I-140 as they said the form 750A was not attached to application which states that my wife is a Physical Therapist and she has practice license and she does not require labor for GC.

The attorney said that he did file 750 A earlier with license copy of my wife, but still he made an appeal on I-140 - so he filed I-290B and sent form 750A with appeal on September 2nd 2005

We received a letter from USCIS that our I-485 has been denied on August 24th as I-140 is denied earlier (actually Same day employer received I 140 denial letter) and there was no date written in I 485 denial letter where they mentioned "Your I-140 was denied on __________" and our attorney said, don't worry, once your appeal is approved, this 485 will be re-instated. So we did not worry about it. and he said, you can continue working as your EAD is still valid.

Our EAD expired on 8th Dec. 2005 and we applied for renewal of EAD through attorney and on Friday 27th Jan 2005, we received letters for both of us that because your 485 is denied earlier you can not get EAD and it is denied. So now our attorney said, you can not work legally.

Our driver's license is expiring on 8th March and they won't renew it if we do not have valid I 94 (which is not there as H1 expired in 2004) or if we do not have EAD card which we won’t get now as it is denied.

So we can not work, we can not drive and all we can do is wait for I 140 appeal to result in positive answer so everything can get back in shape ???

Our Lawyer also said, if we can get a new employer with strong company background then we can reapply or transfer I140 now, but i am not sure why a new employer will apply 140 when we do not even have valid status or EAD.


I have questions:
If our I 140 appeal gets denied then our stay will be called illegal from Dec 2004? (as since then we are on 485 status and we do not have any other visa like H1) Can they deport us after that and not allow us for 10 years to enter US? How long it takes for deportation process. (My wife is pregnant and due in May first week)

Right now we can't work, from March we won't be able to drive and then only if I 140 appeal will be approved then we can get back in status, but i am just thinking what if it will get denied then what are the options??

If we leave country right now and wait for I 140 appeal results can we apply for 485 for consulate processing and come back from India on GC??

If we leave country right now and if appeal for I 140 gets denied then can we get a new H1 after one year?? or we are barred from entering US for 10 years as our stay will be called illegal since 2004 (One lawyer just told me this in NJ) not sure about this response though?

PROBLEM: My wife is pregnant right now and she is through her 7th month, so i am concerned, if we can not drive and work then how we can go through delivery? can we leave for India ? or We should keep patience and wait for appeal result? If I -140 gets denied then can they deport immediately? She will be in bad shape from April, and it will be tough to make movements.. like travelling to India.

Is there anything else we can do rightnow to make this situation or I 140 get approved.

Your support is appreciated.
Thanks,
Dev

 

[LongLongAgo]

I have no idea as to how you can solve your situation, but i can sense that your attorney is not good enough to handle the case, you may want to check with some good attorneys to resolve the issue.

If you choose to stay put here until your i-140 is approved, you may want to think about your health insurance also, if for any reason that they come to know that your stay is invalid, they may not pay for the delivery , which will be a huge burden, i am not scaring but insurance companies always look for loopholes for not paying first before printing the cheque.

Keep sending them letters saying that you are waiting for your I-140 to get approved as your wife is pregnant and you need to drive. I am sure there is an emergency option in any stage. you just have to find a good attorney who knows to put pressure and get the situation right unlilke your current one.

Just my thoughts, could be non-sense also. I choose to reply eventhough i dont know much about is, i was also caught in a tricky situation, the best thing to do in such cases is not to drag the issue but to take one firm decision and execute it. Say you decide to go back, just get a letter from your doctor saying that she was not healthy enough to travel from the time you were out of status and keep that for your records.

All the best. and do post your experience. it would be of use to somebody like you.

LongLongAgo.