Change of Status, Extension of Stay denied-Stayed without knowledge,Please help

E

ennigmaa

New Member
I was no F1, and due to financial situation, I could not graduate, and got my H1 done through a company in Virginia.My H1 was filed thro Premium Processing last May, and during the time of filing I was in India. My employer said, since I was on F1 I can come back on F1, and from October 1st my new H1 status will override the F1. So I returned back to U.S using my F1 in the month of June.
Since Oct 1st till this year May , my employer didnt manage to get me a job, and so I got myselves trained in a new technology marketed myselves through another company and got a job. I bought couple of paystubs from my parent company to transfer it to this new company. That is when I first got to see the actual H1 document, and discovered my Change of Status and Extension of Stay was denied and I have been staying out of status all the while.My parent company says they somehow missed it. Now neither the parent company, nor the new company who offered for a H1 transfer are willing to help me out.
What are my options. I was told that I might get a 10 year ban on entering U.S.All that I got to see from my parent company is the electronic receipt number, and I went online and checked my approval notice. That did not say anyrthing about the denial of Change of Status, and Extension of Stay. Its only in the hard copy of the actual H1 approval notice that it states all the denials, this I never got to see, nor did my employer warn me about this.
I tried consulting with lawyers but the feea are way beyond my scope and I am left with no clue of what to do.
First thing first , is there a way to fix this issue now that Ive stayed out of status for more than a year.
Second, arent my parent company liable for not letting me know of the denials in Change of Status and Extension of Stay.All communication with regards to filing and the H1 documents were dealt by the parent company in Virginia and their Lawyer.Even documents that explained the denial of Change of Status was sent to theie offices. All this Inever got to see until now.
Please give some thoughts on what I should do and whom to contact get out of this situation .
 
ennigmaa said:
I was no F1, and due to financial situation, I could not graduate, and got my H1 done through a company in Virginia.My H1 was filed thro Premium Processing last May, and during the time of filing I was in India. My employer said, since I was on F1 I can come back on F1, and from October 1st my new H1 status will override the F1. So I returned back to U.S using my F1 in the month of June.
Since Oct 1st till this year May , my employer didnt manage to get me a job, and so I got myselves trained in a new technology marketed myselves through another company and got a job. I bought couple of paystubs from my parent company to transfer it to this new company. That is when I first got to see the actual H1 document, and discovered my Change of Status and Extension of Stay was denied and I have been staying out of status all the while.My parent company says they somehow missed it. Now neither the parent company, nor the new company who offered for a H1 transfer are willing to help me out.
What are my options. I was told that I might get a 10 year ban on entering U.S.All that I got to see from my parent company is the electronic receipt number, and I went online and checked my approval notice. That did not say anyrthing about the denial of Change of Status, and Extension of Stay. Its only in the hard copy of the actual H1 approval notice that it states all the denials, this I never got to see, nor did my employer warn me about this.
I tried consulting with lawyers but the feea are way beyond my scope and I am left with no clue of what to do.
First thing first , is there a way to fix this issue now that Ive stayed out of status for more than a year.
Second, arent my parent company liable for not letting me know of the denials in Change of Status and Extension of Stay.All communication with regards to filing and the H1 documents were dealt by the parent company in Virginia and their Lawyer.Even documents that explained the denial of Change of Status was sent to theie offices. All this Inever got to see until now.
Please give some thoughts on what I should do and whom to contact get out of this situation .
Click to expand...



Answer the following questions:
1. Validity of your F1 visa in your passport?
2. Latest I 94 when you enter US with your F1 visa, its validitydate or D/S?
3. Did you see H1 denial notice at least now? What was written as reason?

Give this info first , to see whether I can help you?
Primaface , you are in trouble.
 
1. Validity of your F1 visa in your passport?
28 Jun 2006

2. Latest I 94 when you enter US with your F1 visa, its validitydate or D/S?
I am not clear about the questio.But I 94 says Class Until F1/DS.
Date of entry into U.S Jun 18 2004

3. Did you see H1 denial notice at least now? What was written as reason?
As is in the written reason sent to the law offices of my parent company- again this was not shown, nor I was informend, until I digged into it during my transfer of H1.

"This services electronic records indicate the beneficiary departed the company on May 2005, 2004, therefore , your change of status request may not be approved"
 
ennigmaa said:
1. Validity of your F1 visa in your passport?
28 Jun 2006

2. Latest I 94 when you enter US with your F1 visa, its validitydate or D/S?
I am not clear about the questio.But I 94 says Class Until F1/DS.
Date of entry into U.S Jun 18 2004

3. Did you see H1 denial notice at least now? What was written as reason?
As is in the written reason sent to the law offices of my parent company- again this was not shown, nor I was informend, until I digged into it during my transfer of H1.

"This services electronic records indicate the beneficiary departed the company on May 2005, 2004, therefore , your change of status request may not be approved"
--------- you entred US on F1 Jun 18 2004, were you out of US when COS was filed?? if yes then COS is is abandoned if you went out while F1 to H1 COS was pending
-read:
http://uscis.gov/graphics/lawsregs/handbook/Travpub.pdf
Click to expand...
 
ennigmaa said:
1. Validity of your F1 visa in your passport?
28 Jun 2006

2. Latest I 94 when you enter US with your F1 visa, its validitydate or D/S?
I am not clear about the questio.But I 94 says Class Until F1/DS.
Date of entry into U.S Jun 18 2004
DS means duration of Stay/study
3. Did you see H1 denial notice at least now? What was written as reason?
As is in the written reason sent to the law offices of my parent company- again this was not shown, nor I was informend, until I digged into it during my transfer of H1.

During changing the visa from F1 to H1 , it seems to be you have travelled out side US, if that is the case your visa may be denied.

"This services electronic records indicate the beneficiary departed the company on May 2005, 2004, therefore , your change of status request may not be approved"
Click to expand...
 
Gurus,

It looks like my 140/485 denied on Aug 11th. I have few questions regarding my wife's status. Can anyone help me?
She entered into usa with H4 visa and after that filed H1 and worked for Company A while using H1 but no stamping on the passport. Then she used her EAD to work with Company B. We entered using AP last month after our vacation and now she is working for Company C with EAD.
Since our 485 is denied whats her status now? How will she get back to her status and go back to H1? We haven't got our denial notice and she is still going to work.

Also I have valid H1b stamping in my PP until June 2006 but when i entered i was forced to use my AP by the POE. I never used my EAD and still working with the same H1b employer. What is my status now?
 
Last edited by a moderator:
july140 said:
Gurus,

It looks like my 140/485 denied on Aug 11th. I have few questions regarding my wife's status. Can anyone help me?
She entered into usa with H4 visa and after that filed H1 and worked for Company A while using H1 but no stamping on the passport.
------------ she was on H4 and did she filed H4 to H1 CHANGE OF STATUS? did she got I-94 attached with her H1 approval notice?
Then she used her EAD to work with Company B. We entered using AP last month after our vacation and now she is working for Company C with EAD.
Since our 485 is denied whats her status now?
-------------- she has no status
How will she get back to her status and go back to H1? We haven't got our denial notice and she is still going to work.
-------------------- depends on what is written on I-485 denial notice
Also I have valid H1b stamping in my PP until June 2006 but when i entered i was forced to use my AP by the POE.
------------- if you were working on H1 (not on EAD)and had valid H1 visa stamp how you were forced to use AP? you had the option to enter with H1 visa and on H1 status. even if you entred on AP and still working on H1 status with the same employer who filed your latest H1 you are still on H1 status. use of AP in that situation dont invalidate H1 status.
Read below:
H1, AP
http://www.immigrationlinks.com/news/news301.htm
http://www.murthy.com/news/UDnewins.html

http://www.vkblaw.com/news/fivehundredtwentyfive.htm
http://shusterman.com/cronin51600.html
http://www.shusterman.com/h1memo500.html
http://www.shusterman.com/hl-99regs.html

http://www.murthy.com/chatlogs/chat0816.html
Chat User : Can one continue to work on H-1 after using advance parole to travel? Thanks.

Attorney Murthy : One may not only continue to work on the H1B, but one may also file an extension of the H1B even after having entered on the AP. The problem is that there are no USCIS regulations on the dual intent issues. We only have Legacy INS Memos on this subject from March and May 2000 with the second Memo of May 2000 superseding many sections from the earlier Memo. Generally, a person is allowed to file an H1B extension as long as s/he continues to work for the H1B sponsoring employer even if s/he previously used the EAD or entered on the AP.
I never used my EAD and still working with the same H1b employer. What is my status now?
----H1
Click to expand...
 
ginnu,
Thanks for your reply.
She filed her Change of status and got I-94 attached. I explained to POE that i have valid H1b and want to use H1b, but he never understood and advised me that you shd use AP only when you have AP with you. I was tired of that man and used AP.
 
Ginnu and great guru,

We have received our 485 denial notices. The notice goes as follows. Can you please tell me how will my wife change her status back to H1 based on the condition from my previous post?

The status of an alien who was inspected, admitted or paroled into the United States... may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien admitted to lawful permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible... and (3) and immigrant visa is immediately available...

Title 8 code of Federal regulatations, Part 245.1(c) states in pertinent part:
Ineligible Aliens
...(4) Any alien who claims...preference status under section...203(b) of the Act, unless the applicant is the beneficiary of a valid unexpired visa petition filed in accordance with part 204 of this chapter.

Service records indicate that the petition for an Immigrant Worker (Form I-140), which was filed in your behalf concurrently with your Form I485 application, has been denied.

Therefore, you are ineligible to adjust your status, as you are not the beneficiary of a valid unexpired petition. Accordingly your application to adjust status ( Form I-485) is denied.

The regulations do not provide for an appeal to this decision. Employment authorization requested or granted pursuant to Title 8 code of Federal Regulations Part 274a.12(c)(9) is also hereby effetively terminated.


For my Spouse:

Section 203(d) of the Immigration and Nationality Act States, in pertinent part:

A spouse or child as defined in subparagraph (A), (B), (C), (D) or (E) of section 101(b)(1) shall, if not otherwise entitled to an immigrant status and the immediate issuance of a visa under subsection (a), (b), or (c), be entitled to the same status, and the same order of consideration provided in the respective subsection, if accompanying or following to join, the spouse or parent.

Your application is dependent on the application of .... .... , your spouse, also filed on July 26 2004.

The record establishes that your spouse's application was denied. Therefore, your application must be and hereby is denied.

The regulations do not provide for an appeal to this decision.
 
Service records indicate that the petition for an Immigrant Worker (Form I-140), which was filed in your behalf concurrently with your Form I485 application, has been denied.
---------------it is clear, your I-140 was denied and I-485, EAD AP rest on I-140
 
july140 said:
ginnu,
Thanks for your reply.
She filed her Change of status and got I-94 attached. I explained to POE that i have valid H1b and want to use H1b, but he never understood and advised me that you shd use AP only when you have AP with you. I was tired of that man and used AP.
---the person at POE was wrong. you need to dicuss with good lawyer.it seems you are on H1 status but your spouse used EAD and invalidated her H1 status. go to lawyer and seek legal advice
Click to expand...
 
ginnu,

Since she has H4 visa on her passport and valid I-94, can we go to mexico border for a casual visit and while entering we will ask the POE to give I-94 based on H4? Atleast she can come back to H4 without leaving to home country.
 
Hi july140,

Sorry to hear that. Since, your wife has already used her EAD, H4 in invalid. And since your I-140 is denied EAD, AP is invaild. In order for her to come back on H4, she has to either go to her Home Country or third country [Canada, Mexico] to get her H4 visa stamped. The current visa in her PP is invalid. In case, she goes to Canada or Mexico, and if they deny the H4 or if they say you have to back to your Home Country, then she has to fly from there directly to Home Country, she cannot enter US. The best thing to do would be to go back to Home Country and get the PP stamped with fresh H4. Just 2 cents. Please take second opinion.

Wish you all the best
 
freedom4ever said:
Hi july140,

Sorry to hear that. Since, your wife has already used her EAD, H4 in invalid. And since your I-140 is denied EAD, AP is invaild. In order for her to come back on H4, she has to either go to her Home Country or third country [Canada, Mexico] to get her H4 visa stamped.
The current visa in her PP is invalid.
-------------- USCIS has nothing to do with Visa stamp in the passport, Visa stamp is done by Consulate and consulate are under DOS, if she goes to Canada ( she should give her I-94 to canada immigration when enter Canada) and she can come back to US with new I-94
In case, she goes to Canada or Mexico, and if they deny the H4
------------She has Valid H4 Visa stamp she is not going to Canada or Mexico to get visa stamp
or if they say you have to back to your Home Country, then she has to fly from there directly to Home Country, she cannot enter US. The best thing to do would be to go back to Home Country and get the PP stamped with fresh H4. Just 2 cents. Please take second opinion.
-----------------She has valid H4 visa stamp and she is not going for visa stamping and can enter from Canada/mexico and can get new I-94 ( if she gives her I-94 when enter Canada to Canada immigration)
Wish you all the best
Click to expand...
 
july140 said:
ginnu,

Since she has H4 visa on her passport and valid I-94, can we go to mexico border for a casual visit and while entering we will ask the POE to give I-94 based on H4?
------------- give the I-94 to Canada or mexico immigration when go out when enter get new I-94 till validity of H4 visa stamp if your H1 approval is valid more than her H4 visa stamp then show her H4 visa stamp AND your H1 approval notice she will get I-94 till your H1 approval notice
Atleast she can come back to H4 without leaving to home country.
--can be done
Click to expand...
 
freedom4ever and ginnu,

I spoke with Rajiv Khanna and his advise is when you are in out of status do not take risk of going to Mexico or Canada. Normally these two countries will not take your I-94 even if you give them when you enter in and the POE may or may not give new I-94 at the point of return.

So she is going to India tomorrow to get H1b stamping in Kolkatta. She was working with her H1b until 4 months before and she is going to use the same I-797 since it is valid until Sep 2007 and intent to work for Ex-Employer.
 
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