Dying for help ! My wife is denied :<<

Y

yyyzzz

Registered Users (C)
Sorry for double posting. I could not find a similar case in the forum.

Comrades,

I need you help urgently:

Background: I was on F-1 visa. My I-140 (NIW, no LC) was filed in 05/2003. It was approved in 07/2003. My wife and I filed I-485, EAD, and travel parole in 07/ 2003. Both EAD and travel parole were approved in 02/2004. We worked using EAD and traveled outside the United States with the parole. Therefore, I am no longer in F-1 status.

Problem: My wife was on H-1B visa until 10/2002 when she applied for adjusting status from H-1b to F-2. She did not work since 04/2002. We argued that she was on non-paid leave of absence (sick leave) and her previous company provided document to back up her case. Her application was denied in 05/2003. We filed for reopening the case in 05/2003.

My wife’ motion to reopen the case was denied again today. The rejection letter cites that we used our parole and traveled outside the United States which is in violation of the non-immigrants status. (If USCIS is objection to our intent to travel, they should have rejected our application for travel document in the first place!!! :( )

Our I-485 is still pending, which almost three months past the posted processing date.

Questions:
1. Are we still eligible for I-485?
2. Has my wife violated her status? Is she out of status?
3. Is the time on reopening the case counted as violation of status?
4. What should we do now? File another application to reopen the case? See an immigration judge? Or just wait?

I am in a mode of panic. :mad:

I am sure that there might be others like us who are struggling with these questions. Please help!!! Any advice will be welcome. Thanks in advance!!!

I-485 LUD was in 10/27/2004.
 
yyyzzz said:
Sorry for double posting. I could not find a similar case in the forum.

Comrades,

I need you help urgently:

Background: I was on F-1 visa. My I-140 (NIW, no LC) was filed in 05/2003. It was approved in 07/2003. My wife and I filed I-485, EAD, and travel parole in 07/ 2003. Both EAD and travel parole were approved in 02/2004. We worked using EAD and traveled outside the United States with the parole. Therefore, I am no longer in F-1 status.

Problem: My wife was on H-1B visa until 10/2002 when she applied for adjusting status from H-1b to F-2. She did not work since 04/2002. We argued that she was on non-paid leave of absence (sick leave) and her previous company provided document to back up her case. Her application was denied in 05/2003. We filed for reopening the case in 05/2003.

My wife’ motion to reopen the case was denied again today. The rejection letter cites that we used our parole and traveled outside the United States which is in violation of the non-immigrants status. (If USCIS is objection to our intent to travel, they should have rejected our application for travel document in the first place!!! :( )

Our I-485 is still pending, which almost three months past the posted processing date.

Questions:
1. Are we still eligible for I-485?

you are OK becase you were on valid status when filed I-485 when you had valid status
2. Has my wife violated her status? Is she out of status?
---- I think YES
3. Is the time on reopening the case counted as violation of status?
4. What should we do now? File another application to reopen the case? See an immigration judge? Or just wait?
------- go to good lawyer your wife may be eligible to use 245(k) read/search 245(k) eligiblity
I am in a mode of panic. :mad:

I am sure that there might be others like us who are struggling with these questions. Please help!!! Any advice will be welcome. Thanks in advance!!!

I-485 LUD was in 10/27/2004.
Click to expand...
 
yyyzzz said:
2. Has my wife violated her status? Is she out of status?
3. Is the time on reopening the case counted as violation of status?
Click to expand...

The problem is that 245(k) covers only upto 6 months (180 days) of out of status. Your wife was out of status for 7 months. The 7 months "leave of absense" in H1 status very difficult to backup, as USCIS is very aware of the "benching" issues. So her employer's letter is not is going to help much - as USCIS considers you and your employers are in same side in this issue. Unless, you can show some valid reason - like medical condition.

I am not sure, one MTR is denied, if you can re-open it again. Talk to a good lawyer. If so, you need to show someone that her out of status was less than 180 days.
 
pralay said:
The problem is that 245(k) covers only upto 6 months (180 days) of out of status. Your wife was out of status for 7 months.
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The trick is if the spouse has accumulated any illegal presence. If less than 180 days of illegal presence before the I-485 was filed (which appears reasonable) then in a worst case she can do CP.

Besides, it's important to note the grounds for the rejection of the F-2 COS; it's because her husband is no longer in F-1 status! There may not be a status issue for the wife here at all regarding the I-485.

I'd suggest she try and obtain an H-1B so that she can remain in the US while doing CP.
 
Thanks a buch!!

Hi all,

Thanks a bunch!

I have not had much positive experience with lawyers. In my case, they have always made things worse. :(

What is CP? Any recommendations for a good lawyer in the Los Angeles region?

Thanks a gain.
 
yyyzzz said:
I have not had much positive experience with lawyers. In my case, they have always made things worse.
Click to expand...

That is unfortunate. The trick is picking the right lawyer, and making sure that you are an informed client. I think you're moving forward in both areas, which is good.

What is CP?
Click to expand...

Consular Processing. It's just like getting a non-immigrant visa at a Consulate, except in this case she is getting an immigrant visa there.

Any recommendations for a good lawyer in the Los Angeles region?
Click to expand...

Anyone here dealt with Carl Shusterman? What you want is a 30-60 minute consult, and you should pay anything more than $100 to $150 for it.
 
TheRealCanadian said:
Besides, it's important to note the grounds for the rejection of the F-2 COS; it's because her husband is no longer in F-1 status! There may not be a status issue for the wife here at all regarding the I-485.
Click to expand...

Not sure about it. It's was not due to primary's status issue, but she took time to convert her H1B to F2. She should have done it 04/2002 (instead of waiting till 10/2002), but probably could not do it due to some reason.
 
yyyzzz said:
Hi all,

Thanks a bunch!

I have not had much positive experience with lawyers. In my case, they have always made things worse. :(

What is CP? Any recommendations for a good lawyer in the Los Angeles region?


undefined

My lawyer is very good. If you're interested send me a private message and I will give you his contact nos.

Thanks a gain.
Click to expand...
 
pralay said:
Not sure about it. It's was not due to primary's status issue, but she took time to convert her H1B to F2.
Click to expand...

Perhaps, but the latest rejection doesn't even mention that; it just says that he is no longer in F-1 because he re-entered with AP.
 
thanks much

Guys,

I am really grateful for your comments.

One more question. Since my wife tried to reopen her case based on her previous application and her status at the time of previous rejection, why should they reject the application based on the status she is currently in.

We were not filing a new application. Instead, we filed for reopening the case. Do you think it wired to reject the case on the ground of our current status?

Thanks again!

yyyzzz
 
OPT valid? when an H-1B issued?

Guys!!!

One more question.

Is OPT still valid when an H-1B is issued? My wife's OPT was still valid until 06/2002.

Thanks a bunch!!!!!! yyyzzz
 
Should reopen be considered when the case was denied?

Hi Guys!!

Many thanks for previous post!!

Tow more questions:

1. Should reopen consider the status of the applicant when the case was denied? USCIS should not deny our MTO based on the activities after MTO was filed, should they?

2. How many times can we file for reopen?

Tons of Thanks again!!!

yyyzzz
 
yyyzzz said:
Should reopen consider the status of the applicant when the case was denied? USCIS should not deny our MTO based on the activities after MTO was filed, should they?
Click to expand...

Of course they should consider what has happened since the MTR was filed. Basically, USCIS takes into consideration two things: 1) was the original decision made in error; and 2) is the alien currently eligible for the relief he or she is seeking?

It's arguable wether the F-2 COS was denied in error. Since your wife had been out of status for a while, it was entirely within USCIS's discretion wether to grant it or not. However, what's not in doubt is that she is clearly ineligible for F-2 status NOW, since she is no longer the spouse of an F-1 alien (you are a parolee). Therefore, since 2) is clearly false, there's no point debating the merits of 1).
 
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