Date with Court and little worried

D

dave74

Registered Users (C)
Hi Gurus,

This may not be a problem, but since we still have to go to court, any reply will be appreciated.

My wife was in Deportation proceedings due to failing to maintain H4 and we applied for I-485 for her along with mine and got the NTA and went to court couple of times, meanwhile, we were applying for Nunc Pro Tunc for H4 and luckily and by hard work of the lawyer we hired, we got it approved and we applied for I-485 in the court since the I-485 we tried to open was denied giving only note as "For Technical Reasons, I-485 couldn't be opened" to us.

My PD became current for May 2011 and we have a court date in May 2011, I am worried, since my lawyer is very busy and hard to get a hold of him until the last moment.

I would appreciate any reply throwing some light on this and how the process will go thru.

Please reply, If you have any questions, please write so I can reply.

Thank you,
 
If the H4 was indeed approved and backdated "nunc pro tunc approval" but the prior I-485 was denied then she can file a new I-485 with the IJ or if the IJ terminates the case, he can order her to file with USCIS (include a copy of any such order).

You indicate that the priority date is current in the May 2011 Visa Bulletin therefore, what prior I-485 are you talking about? Was it filed while the PD was current then the PD retrogressed BUT her status was invalid at the time of the I-485 filing? It seems like the only possibility.
 
Dear BigJoe5

Thank you for your reply.

My wife has backdated approved H4 now until the I-485 was filed in 2007, I am on H1b and my PD is May 2006, then the date retrogressed and this month, the Visa bulletin brought good news for us, the date has moved upto 1st July 2006.

I am talking about my wife's I-485 which we tried opening after we received the H4 NPT Approval, which remained denied with only reason in Notice being "For Technical Reasons, your I-485 remains denied." even after the H4 NPT approval from the period she accrued invalid status until the I-485 was filed.

Her I-485 was filed along with mine in 2007 and yes at that time, she was not in status.

So as per you BigJoe5, there should not be any problem with getting a GC in the court, am I correct ?

Please reply.
 
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dave74 said:
Thank you for your reply.

My wife has backdated approved H4 now until the I-485 was filed in 2007, I am on H1b and my PD is May 2006, then the date retrogressed and this month, the Visa bulletin brought good news for us, the date has moved upto 1st July 2006.

I am talking about my wife's I-485 which we tried opening after we received the H4 NPT Approval, which remained denied with only reason in Notice being "For Technical Reasons, your I-485 remains denied." even after the H4 NPT approval from the period she accrued invalid status until the I-485 was filed.

Her I-485 was filed along with mine in 2007 and yes at that time, she was not in status.

So as per you BigJoe5, there should not be any problem with getting a GC in the court, am I correct ?

Please reply.
Click to expand...

According to what you have divulged, she 1.) is currently in a lawful non-immigrant visa status, and 2.) at the time of filing the I-485 will have an "immediately available" visa (or "current" priority date (they are the same thing)).

CAUTION: IF any of the time she has been in the U.S. is construed as "unlawful", she may be unable to travel abroad and return even if given advance parole. Check with your lawyer on all the minute details.

When she filed, she was NOT in status---that is the technical reason why it CANNOT be reopened.
 
Thank you bigjoe5,

My wife has received the full NPT approved for the period she was in US, until we filed I-485 in 2007. So she doesn't fall in a single day of unlawful presence, except for after the I-485 denial.

We got NTA in Feb. 2010 & applied H4 & I-485 Motion couple of times & finally applied for h4 appeal to commissionaire which got approved.

I am concerned as to what's my Wife's current status?

Do you think she is eligible for relief in front of the IJ in court ?

Please reply.
 
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dave74 said:
Thank you bigjoe5,

My wife has received the full NPT approved for the period she was in US, until we filed I-485 in 2007. So she doesn't fall in a single day of unlawful presence, except for after the I-475 denial.

We got NTA in Feb. 2010 & applied H4 & I-485 Motion couple of times & finally applied for h4 appeal to commissionaire which got approved.

I am concerned as to what's my Wife's current status? NOW, she is in a lawful status and when the Visa Bulletin becomes effective, she can file BUT right now her case is under the jurisdiction of the IJ so she cannot file with USCIS, yet, because they do not have jurisdiction. Did your lawyer file an I-485 with USCIS after she had an NTA? That's incompetence at its worst. The nunc pro tunc H-4 approval fixed her non-immigrant status BUT it did NOT end the IJ's jurisdiction.

Do you think she is eligible for relief in front of the IJ in court ?

Please reply.
Click to expand...

From the info you have supplied, an I-485 can be accepted OR the IJ can return jurisdiction to USCIS (dump the case back on USCIS) by terminating the case and directing her to file with USCIS. Even if the IJ kept jurisdiction, he could only make a tentative grant and send her to USCIS to 1.) pay the filing fee and 2.) get the background check taken care of. Then she would have to be recalandared for another hearing and then an ICE lawyer has to contact USCIS about the background checks and communicate with the Immigration Court clerk if rescheduling is required etc....

It is easier for an IJ to give a case back to USCIS jurisdiction that he does not need to keep as a matter of law. The IJ has to keep the asylum and withholding cases and cases involving interpretation of various state criminal statutes that are likely to be appealed to the BIA and perhaps in Circuit Court.

Her case seems like a waste of EOIR resources. Get your lawyer (if you have one for this) to ask the IJ to terminate the case and refer it to USCIS. Your lawyer won't make as much money but that's just tough luck.
 
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BigJoe,

Thank you for your reply.

My attorney for the Deportation is telling us that he can get us a GC in the court for my wife, he filed the I-485 in the court last time we had a date in court.

From what you are saying makes sense, but I guess, my attorney didn't want to lose his big money he asked me to get a GC in the court, he told me if the case goes back to USCIS, they will create more trouble and that He can get us a GC in front of the IJ in court.

The Law firm who we hired for H4 NPT also filed I-290B - Appeal to Commissionaire for I-485, is still pending, I am not sure if that can be used if the IJ asks us to file I-485 with USCIS.

Please reply.

Thank you.
 
Dear BigJoe,

As per your link, it seems like the Judge will order us to apply I-485 with USCIS even though we filed it in the court during the last hearing, do you think the pending I-290B can be used for that ?

I don't know if the current deportation attorney will agree for less even if he can't get me a GC in court.

Hoping for the best.

Please reply.
 
dave74 said:
Dear BigJoe,

As per your link, it seems like the Judge will order us to apply I-485 with USCIS even though we filed it in the court during the last hearing, do you think the pending I-290B can be used for that ?

I don't know if the current deportation attorney will agree for less even if he can't get me a GC in court.

Hoping for the best.

Please reply.
Click to expand...

If a person was not eligible to file an application when it was filed then it cannot be re-opened nut a new can be filed if the person has become eligible. It seems that an I-290B was filed with regard to the H-4 nunc pro tunc petition but an I-290B filed as a Motion on an invalid I-485 is not going to work.

Are you saying that two I-290B's were filed? One for to H-4 and another for the I-485 that was not even possible when it was filed while she was out of status???? Where did you find such a crappy lawyer? At a bus depot toilet in the middle of the night?

Here is a form to file on your own without your lawyer: http://www.justice.gov/eoir/eoirforms/eoir44.pdf
 
Dear BigJoe,

I hired the top notch attorney for H4 NPT, but after reading your reply, I myself am thinking why he would do that.

Thank you for your clear answers and I very much appreciate it.

The attorney who joins us at the court is different than the one we hired for H4, they do not practice in deportation related cases.

I understand now that my wife do not have a problem anymore, but just the wait.

Regards.
 
Hi BigJoe,

Will we require my wife's passport ? It expired last week and the Indian Consulate is giving hard time for not having a proof of status, in fact, I gave them the proof that her I-485 is pending by showing them the receipt and a letter from USCIS office that the Date is not current.

They are now asking for witness signs and their passport and GCs, I can get it, but its altogether, If I can wait for her passport renew, I will do it after we get the GC.

If I do it now, they will probably only give for 1 Year validity and again will have to renew it in around a year.

Please reply if you have any idea.

Thank you,
 
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