140/485 Denied - should we leave for India

D

Dev_recruit

Registered Users (C)
Hi Friends,
Here is my case,
We applied for I-485 and I-140 on 26th November, 2004 (my wife is a Physical Therapist and it was applied through her employer) and my H1b visa expired on 11th December, 2004. Since then we are staying on AOS with I-485 Receipt.

Now that I-140 and I-485 was denied on August 24th, 2005. We made an appeal for I -140 immediately after that.

Do we have to calculate 180 days from August 24th i.e. 24th February, 2006 (After 485 was denied as out of status days) that way we can still apply for 485 on consulate processing from India or come back on H1 in 2007. If our appeal is Approved.

OR

They count us out of status from 11th December 2004 when my H1 expired which makes us out of status since last 1year and more.
Because if it is from 11th Dec. 2004 then we are already barred for 10 years to enter US. Then is it advisable to wait for 140 appeal results to come? So we can re-open 485 status if by chance it gets approved.

And if appeal gets denied then anyhow we are barred for 10 years, so we can forget about coming back to US and leave US when the appeal results come negative.

I just want to make the right decision.

Please let me know, what should we do.
Thanks
Dev
 
abelle said:
You are out of status from 12th December, 2004.
Click to expand...

No. He was in status on December 12th 2004 because of the pending I-485. The fact that it was denied later doesn't retroactively make him out of status as of that date.

Illegal presence commenced on the date of the I-485 denial.
 
I do not think they are out of status from Dec 2004. They were in AOS after expiry of H1B and they are out of status form the time of denial. While AOS is pending you are allowed to stay as authorized to stay by the Attorney General. Any comments from anyone? Moreover I think think you should talk to a lawyer if you have not already done so.
 
Dev_recruit said:
Hi Friends,
Here is my case,
We applied for I-485 and I-140 on 26th November, 2004 (my wife is a Physical Therapist and it was applied through her employer) and my H1b visa expired on 11th December, 2004. Since then we are staying on AOS with I-485 Receipt.

Now that I-140 and I-485 was denied on August 24th, 2005. We made an appeal for I -140 immediately after that.
Click to expand...
What was the reason for denial? This forum may help you if you describe in detail reasons for denial.

Dev_recruit said:
Do we have to calculate 180 days from August 24th i.e. 24th February, 2006 (After 485 was denied as out of status days) that way we can still apply for 485 on consulate processing from India or come back on H1 in 2007. If our appeal is Approved.

OR

They count us out of status from 11th December 2004 when my H1 expired which makes us out of status since last 1year and more.
Because if it is from 11th Dec. 2004 then we are already barred for 10 years to enter US. Then is it advisable to wait for 140 appeal results to come? So we can re-open 485 status if by chance it gets approved.
Click to expand...
You are not out-of-status from Dec-11. you were in AOS, legal to stay in the country. you are out of status from the denial date.
[/QUOTE]
 
Thanks for your response guys, Here is my whole case

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
 
Can you please review this too

Hi UN,
Thanks for your support, I also sent an email earlier to your gmail account for support and you replied here on board, thanks.
Can any one suggest me something on below given material from USCIS website.
My problem rightnow is to decide whether to leave before 24th Feb when my 180 days are over or to stay back and wait for appeal's result. and in either case what is more effective. Which of the following can apply for me in both the cases.

Can you please let me know if the below given terms can help us in anyway?
I read this on www.USCIS.gov

Background
Our immigration laws allow qualified individuals to enter the United States as lawful permanent residents (“green card” holders) after they obtain immigrant visas from a consulate or embassy outside the United States or, for many immigrants already lawfully in the United States, through a process called “adjustment of status.” If you entered the United States unlawfully, if you entered with permission but did not stay in lawful status, or if you worked without permission, you normally would have to leave the United States in order to apply for an immigrant visa. Special rules under section 245(i) may allow you to apply to adjust status without leaving the United States.
You might need section 245(i) if you:
Entered the U.S. without being inspected by an Immigration official.

Stayed in the U.S. longer than allowed by Immigration.

Entered the U.S. as a worker on an aircraft or ship (crewman).

Entered the U.S. as a “Transit Without Visa.”

Failed to continuously maintain a lawful status since your entry into the US.

Worked in the U.S. without Immigration permission.

Entered as an “S” nonimmigrant (relates to witnesses about criminal or terrorism matters).

Are seeking a work-related visa and are out of status at the time of filing the application to adjust status (Form I-485).

Worked in the U.S. while being an “unauthorized alien.”
NOTE: There are some groups that may not need to use section 245(i).
The spouse or unmarried minor child of a U.S. citizen or the parent of a U.S. citizen child at least 21 years of age if he/she was inspected and lawfully admitted to the United States, but subsequently overstayed his/her authorized admission or worked without permission, may apply for adjustment of status under section 245(a) and does not need to use section 245(i).
Certain persons who are eligible for certain employment-based immigrant visas and who were inspected and lawfully admitted to the United States, but have not violated their status or worked without permission for more than 180 days, do not have to apply for adjustment of status under section 245(i). They may be able to use section 245(k).

Your support is appreciated.
Thanks
Dev
 
Do not panic

Do not panic. You are ok. The clock stops once you file for an appeal. Also, if your H1 after you applied for aos, then you are ok. What you need to do is to get the help of a congressman or a senator. Write a good letter with precise dates and circumstnaces and explaine your dire need for help (your wife situation and so on). Also, try to go now and renew your driver license. I just got mine without any problem although I am on aos. No single question was asked.

Hope everything will go in the right direction and good luck.
 
Here is what i am thinking rightnow

Thanks for the support friends,
Here is what i am thinking, because we asked our doctor yesterday and in 7th month he is not advising my wife to travel on 18 hours flight. I understand that seriousness too. Now let me know what do you think about these points..
Our 180 day stay after 485 denial on 24th August is ending on 24th
Feb. Now if we don't leave now and stay back for the 140 appeal to result
in positive and my wife's delivery in May 1st week then what can be the worst result of our overstay.

If we ask some other employer to file a new 140 at this time, then
what should we tell them our current status is? can we still apply new 140
though? and stay here for old 140 appeal and new 140 to result. what happens if we get new 140 approved first?

Can our baby get citizenship if he/she takes birth here in this condition.

What can be the worst result of our overstay? in case if 140 appeal gets approved and if it won't get approved.

I don't want to jeopardize my wife's pregnancy and atleast after 7 years of stay in US, our baby can be a citizen if not us. If 140 appeal gets denied then we leave after baby is atleast 2 -3 months old and we will be barred for 3 years to enter US. but if the appeal is approved then what issues we can face because of overstay?

I hope you are getting my point, because our i 140 was denied for our lawyers minor mistake, and they wanted just 750A form to be resubmitted, which he filed with Appeal. So there are chances it will get clear.

About Driving license, i tried but they said i have to have EAD card which shows some expiration date or I-94 which shows expiration date in future. Just with 485 reciept they don't give license. I won't be able to drive from 8th March or my wife.

Thanks,
Dev
 
Dev_recruit said:
Thanks for the support friends,
Here is what i am thinking, because we asked our doctor yesterday and in 7th month he is not advising my wife to travel on 18 hours flight. I understand that seriousness too. Now let me know what do you think about these points..
Our 180 day stay after 485 denial on 24th August is ending on 24th
Feb. Now if we don't leave now and stay back for the 140 appeal to result
in positive and my wife's delivery in May 1st week then what can be the worst result of our overstay.
Click to expand...
did you file MTR for I-485 as well along with I-140 appeal? Do you see online message that "your case has been re-opened. decision will take 365 or more days" any similar message? If your MTR was accepted, you will see such message. If yes, you are again legal to stay until further decision is made on your case.
Dev_recruit said:
If we ask some other employer to file a new 140 at this time, then
what should we tell them our current status is? can we still apply new 140
though? and stay here for old 140 appeal and new 140 to result. what happens if we get new 140 approved first?
Click to expand...
If another employer is ready to file I-140. I would advise to go for that since you already have made up your decision to not to travel until your baby is borned. If nothing happens to your current appeal, you can remain in status with new I-140, I-485 pending. However as UN mentioned, there is a high chance that second I-485 will be denied since you filed while you were out-of-status. But filing second I-485 will put you back in status until decision is made.

Think this way; anyway you are planning to over stay as you mentioned. if employer is ready to file I-140, then what you have got to lose? you will get some more time to stay legally.

Dev_recruit said:
Can our baby get citizenship if he/she takes birth here in this condition.
Click to expand...
YES. she will be US citizen regardless of your status. I am sure you know that she can sponsor you after she is 18 years of age.
 
dyingforgc said:
YES. she will be US citizen regardless of your status. I am sure you know that she can sponsor you after she is 18 years of age.
Click to expand...

21 years of age.

And I too am curious if an MTR has been filed on the I-485. It should have been.
 
Dev_recruit said:
Thanks for the support friends,
Here is what i am thinking, because we asked our doctor yesterday and in 7th month he is not advising my wife to travel on 18 hours flight. I understand that seriousness too. Now let me know what do you think about these points..
Our 180 day stay after 485 denial on 24th August is ending on 24th
Feb. Now if we don't leave now and stay back for the 140 appeal to result
in positive and my wife's delivery in May 1st week then what can be the worst result of our overstay.

If we ask some other employer to file a new 140 at this time, then
what should we tell them our current status is? can we still apply new 140
though? and stay here for old 140 appeal and new 140 to result. what happens if we get new 140 approved first?

Can our baby get citizenship if he/she takes birth here in this condition.

What can be the worst result of our overstay? in case if 140 appeal gets approved and if it won't get approved.

I don't want to jeopardize my wife's pregnancy and atleast after 7 years of stay in US, our baby can be a citizen if not us. If 140 appeal gets denied then we leave after baby is atleast 2 -3 months old and we will be barred for 3 years to enter US. but if the appeal is approved then what issues we can face because of overstay?

I hope you are getting my point, because our i 140 was denied for our lawyers minor mistake, and they wanted just 750A form to be resubmitted, which he filed with Appeal. So there are chances it will get clear.

About Driving license, i tried but they said i have to have EAD card which shows some expiration date or I-94 which shows expiration date in future. Just with 485 reciept they don't give license. I won't be able to drive from 8th March or my wife.

Thanks,
Dev
Click to expand...
Did you have an approval of LC or not at the time of filing your I140? What base on earth did you appeal for the denial of your I140?
 
immiq said:
Did you have an approval of LC or not at the time of filing your I140? What base on earth did you appeal for the denial of your I140?
Click to expand...

person's wife is a PT. she falls under schedule A category, where one doesn't need LC. Schedule A can file I-140 directly. NO Labor certificate.
 
unitednations said:
I always thought if you are subject to the 3/10 year bars and you don't marry a citizen then it was game over for you.
Click to expand...

Out of curio UN, can't his to-be US borned kid sponsor parents even though they acquired illegal presence in the country just like marrying USC?
 
Dev Here - Important summary

Thanks guys once again for all the feedback. It really helps because it opens different avenues to think about.

Looks like i was counting wrong way. My 485 was denied on 24th August so my 180 days are over on 19th Feb, so few days left. If i decide to leave. If i leave then i can go back to India and wait for this 140 Appeal to clear. If we get approved then file 485 for consulate processing and get back here on GC if they clear us in interview at Bombay consulate.

If won't get approved then we have to look for an employer in US who can file 140 for my wife as she is a PT and we do not require labor, and wait for that 140 to approve and file 485 for consulate processing. OR We both can apply for H1 in April 2007 and come back to US on H1 and start everything from scratch. My 6 years on H1 is over so we have to stay 1 year outside US.

Now let me know what issues we may face doing this, as we won't be staying here more then 180 days, and what issues can we get at consulate processing 485 interviews or filing new H1 as we have stayed for 180 days here.

Second and major option we are considering rightnow is not to go back rightnow and wait for 140 appeal to clear and have our baby in May here, that way atleast we won't jeopardize my wife's pregnancy by flight for so many hours and selling everything we have in 2 weeks which are left from today.

If we get approval on 140 then when we reopen 485 what issues we may face? at interview because we stayed here more then 180 days.

If we get another employer in this month to file only 140 for my wife and no 485 because that 485 will be rejected anyway and as UN said that may give more bad effects later on. But if that 140 gets approved then can we file 485 on that approval? because we will be in US for more then 180 days and will they approve that? no idea.. help me out with some responses.

If we get denial on current 140 appeal and we go back to India when the baby is atleast 3 months then definately we will be barred for 3 years so end of story, but if this appeal gets approved and we are still here then we can save this whole process and get our GC while we are here.

This is all i am thinking rightnow, give me idea what should we do..
Thanks
Dev
 
One Important Question

As you all know, We have filed an appeal on our I 140 denial on 2nd September 2005, with a reciept date of 5th September 2005.

How long does it take to get a response on Appeal ??

Is there a way i can check processing date or time for Appeal. I have receipt no and i am checking online status but it says that it will take 30 to 180 days for such case. But anywhere i can check their processing dates schedule??

Thanks,
Dev
 
dyingforgc said:
person's wife is a PT. she falls under schedule A category, where one doesn't need LC. Schedule A can file I-140 directly. NO Labor certificate.
Click to expand...
But the USCIS has determined the LC is required. She worked with her license. The interesting thing is how her attorney appealed for the denial. What the argument did her attorney provide the USCIS with?
 
I don't know what others think, but if I were you, what I am going to do:

Stay until the wife deliver and let the kid receives US birth ceritifcate.

By then, if you fail to appeal and/or got barred for 3 years (overstay 180 days and less than 1 years), let be it. Just go back home to work for 3 years and wait for future oppotunities.

At least you know "what you already archive for 7 years in the US" is your kid life will not be screwed up like yours.

If you go home now, what do you have ? NO THINGS guaranty. Your kid life will be hell like your life in the future.

It is just mine. You could do whatever you like :)
 
How many days grace period after 485 denial?

According to UnitedNation, one acquires illegal status the day he gets 485 denial. Is he supposed to leave same day / same hour? Even the denial notice takes days to come by mail?
Sorry if I misunderstood.
 
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