7th yr H1 during CP...

go_lakers

New Member
Hi,
This is for a friend of mine, here are his details
- I140 approved mid 2001
- Started CP end 2001
- 6th yr H-1 expired Dec 2002
- Re-entered US end Dec after marriage
- Before entering US after marrige, he got his H-1 stamped and got a valid I-94 till Dec 2003.
- His wife's H4 was also approved.
What is his current status and what are his options? If he is out of status now, will he have problems in his CP interview?
Appreciate all input.
Thanks.
 
When did he leave the country?

If he overstayed, it may be an issue for Adjustment of status, but not necessarily for CP. He should contact an attorney for clear guidance.
 
He left sometime in November 2002, and returned to the US after his wedding. They entered US just a few days before the end date of his 6th hyr H1. Actually he also got his current H1 visa which is valid until Dec 2003 stamped while he was in India. His wife also got her H4 stamped just a few days before enetering the US. At the port of entry the officer gave him a valid I-94 until Dec 2003.
Thanks for your reply.
 
In status

Originally posted by go_lakers
He left sometime in November 2002, and returned to the US after his wedding. They entered US just a few days before the end date of his 6th hyr H1. Actually he also got his current H1 visa which is valid until Dec 2003 stamped while he was in India.
His wife also got her H4 stamped just a few days before enetering the US. At the port of entry the officer gave him a valid I-94 until Dec 2003.

If your friend entered US on the new H1 and visa officer has given the couple I-94 stamped till Dec 2003, your friend and his wife are not out-of-status. They should not have any problem in CP interview. But your friend and his wife will need to maintain the status for his duration of stay in US before the couple gets the LPR status.

Thanks for your reply.
 
From the data you have presented, your friend and his wife are still in status. But why haven't they scheduled their CP interview yet?
 
He has just received his packet3 and will be sending it out soon. The only doubt is he has already been here for 6+ years and there is a definite 6 yr limit on H1? They don't want to take a risk by going for the CP interview and finding out that they were out of status from Dec 2002. In such a case will his GC be denied in the CP interview?
Thanks for your replies.
 
CP process will take time

Originally posted by go_lakers
He has just received his packet3 and will be sending it out soon.
CP route will take about 4 to 6 months to get the final interview, hoping everything else goes smooth. I assume your friend has maintained legal status for last 6 year. And from the posting here, I understand he will be in status till end of 2003. Most likely he should get the interview before Dec 2003.

The only doubt is he has already been here for 6+ years and there is a definite 6 yr limit on H1?
7th year extension is within the law. So nothing to worry about.

They don't want to take a risk by going for the CP interview and finding out that they were out of status from Dec 2002.
INS/BCIS goes by rule, laws and processes. An individual should not get surprises at any stage. Your friend should be aware of his circumstances and past stay in US. Contact an attorney to remove any doubts and then take an informed decision.

In such a case will his GC be denied in the CP interview?
From the info presented here, your friend seems to be in-status. So he should not worry and GC will not denied on this reason. But if you think your friend has a reason to think that he was out of status, then talk to attorney for best direction. In that case AOS might be much safer than CP, as atleast he will have the services of an attorney to defend his case.

Thanks for your replies.
 
I agree with everything CPDelhi says except....
If your friend is out of status, AOS will not work because even in the final stages, INS can question status violation and deny PR status. However, CP is safer because the consular officer does not have discretionary powers to deny PR status unless fraud/health issues/terror concerns are at play. Check with a lawyer and browse Ron Gotcher's website for more info.
 
All consular/visa officers have same discretionary powers

Originally posted by Rajeev Kumar
I agree with everything CPDelhi says except....
If your friend is out of status, AOS will not work because even in the final stages, INS can question status violation and deny PR status. However, CP is safer because the consular officer does not have discretionary powers to deny PR status unless fraud/health issues/terror concerns are at play.

All the consular officers in the US consulates or the visa officers in US have same powers and make decision based on facts and law of the land (US). Any individual who has been out of status can be denied visa in US or outside US.

The reason the US consulate web sites list fraud/health issues/terror as the reason of immigrant visa denials because a very high percentage (70 to 90%) of the immigrant visa issued are to candidates who have never been to US (usually family based immigration). So the out-of-status clause does not really affect them. But if there is an individual who is been out-of-status in US as per the US immigration laws then the visa will be denied to the individual.

If the immigrant visa is denied to an individual, there are very limited things that can be done. But if the candidate is in US, s/he can take a legal course with the help of legal system and attorneys in US.

Hence I feel that only when a case is strong and clear, an individual should take the CP route. Otherwise AOS is a better route to get LPR.

Check with a lawyer and browse Ron Gotcher's website for more info.
 
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84% percent AOS denial-- Hard to believe

In the URL posted on this thread, its very hard for be to believe the statement made by Ron stating that "There is 84% denial rate in AOS for last 20 years in EB category". I don't have statistics or data to disprove it. But by just with the information flowing around, it's very hard for me to believe the truth/reality in Ron's statement. I smell someting in the way Ron(an Attorney) has stated/represented some info from the archives.

http://immigration-information.com/showthread.php?s=&threadid=1891&highlight=consular+status

I am in no way a legal immigration law expert or a paralegal or an attorney. These are just my individual thoughts based on my knowledge and experience.

Thanks & Good Luck.
 
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Any idea - What kinds of checks at performed at Consulate?

Medical?
Marriage Certificate?
Previous employment - calling employers ?
PCC?
out-of-status ? how do they do this ?
affidavit-of-support?
empoyment verification?
 
84% denial ?????????????

My thoughts are same as you guys,

Wait a minute !!!

84% denial ???. I do not believe this, and I do not have any
proof to support my theory.

I would like to view the URLs inserted, but not able to navigate
to them.

I too would like to hear about the kind of checks made by the
Consulate , just like rahul07.

Raju
 
Consulate checks

Originally posted by rahul07
Any idea - What kinds of checks at performed at Consulate?

Medical?

Usually there is no check. The physicians are regulated. I don't think they would play any mischief and kick out the easy flowing money from the CPers.

Marriage Certificate?
This could be done for individuals marrying US citizens. Though adequate proof (wedding card, wedding photo graphs) is required for F1 (spouses of US citizen) category in family based immigration.

Previous employment - calling employers ?
Could be done on spotty cases. But not for all the cases in the consulate.

PCC?
Government issued document. Not a cause of concern for employment based CPers, who already have a PCC from Indian Consulate in US.

out-of-status ? how do they do this ?
From the DS-230 Part 1, item 25. I don't think INS does a real out-of-status check for each GC case. But falsifying the info in the form could result in deportation, if caught in later years also.

affidavit-of-support?
If the individual becomes a public charge to the US government and info in I-134/I-864 was false, may result in deportation in later yeasr also.

empoyment verification?
Should be only for employment based immigrations. Spot checks could be done but are not usually done.

Most of the checks(name/fraud/FBI/employment/etc) are already done in US before the cases are sent to US Consulate in the individual's home country.
 
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Ahh.. just back from a short vacation..

The 84% rejection rate for EBs was hard to believe for me too. However Ron seems to be quoting INS figures. Before vilifying him or questioning his motives, remember that he is the only immigration lawyer that has provided prompt and free legal advice to thousands of immigrants. Even if you take that figure with a pinch of salt, the rest of the arguments in the threads show the benefits of CP. In some other posts, he has maintained that if your CP is 'rejected' for whatever reason, you would have surely failed to do AOS. Since every law needs to be interpreted by an officer, there is a huge variation in how INS/Consulate interacts with us. My attempt was to dispel any myths from a would be CPer's mind.
 
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