F1 Unlawful Presence-Other appeals pending

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txmom

Registered Users (C)
How do you determine if unlawful presence has begun to accumulate when the most recent visa was an F1? The F1 was terminated from not meeting attendance requirements and reported by school to ISO in January 2010. Since then, a perm and H1 visa were denied and appeals are being filed for both. I understand that D/S on I-94 means that a judge must rule unlawful presence or other immigration benefits are denied to start the clock. Would unlawful time have started accumulating when the perm and H1 were denied, OR when school reported to ISO, OR not at all? We hope to continue the current appeals and do not want the unlawful time to reach a possible bar, since we have a severely disabled USC child who needs the care of both parents.


Aug 1997- Dec 2001 F1 Recruited from Canada by US University
April 2001-April 2002 OPT from school
May 2002-2009- H1B
April 2008- Perm app sent
June 2008- request for more info sent for perm.
Feb 24th 2009 H1B ended.
Feb 2009-Dec 2009 F1...Termination of F1 by School was Jan 2010.
June 2009- submittion of H1B extension due to a year of Perm in process.
July 2009-denied that H1B then appealed with more papers and explanation, then denied again.
2010 submitted H1B for Marketing analyst- denied then appealed, denied again
June 2010 submitted H1B for VP of Marketing and Sales due to increased business and a need for this position. denied and about to be appealed soon.
July 2010 Perm denied, going to file MTR to reopen Perm app.
Considering marriage to USC...in 5 year relationship with one child
 
The unlawful presence would have started with the H1B denial, unless they sent something before that to indicate a formal finding of unlawful presence.

Why do you expect to win the appeal of the H1B denial? You already used up your 6 years of H1B, and you don't have an active labor certification, I-140, or I-485 anymore, and you haven't spent a year outside the US to reset your H1B clock.
 
Attorney explained that a labor certification will still be considered “pending” while the denial or revocation of the labor certification application may be appealed, or while the appeal is actually pending, for the purposes of determining if an H-1B nonimmigrant is eligible for extension of stay.
 
If you have an attorney, why are you posting to a forum? Your attorney has the specifics of your particular situation.

The US government does not care that you have a USC child until the child is 21 and can sponsor you. Nothing prevents both parents from leaving the US with the child since nothing in US law prevents a USC from residing anywhere else in the world.
 
Didn't realize we shouldn't post to the forum if consulting with an attorney?!?!

I'm a USC mother to a USC 2 year old with severe disabilities. Our child has emergency surgery nearly every month and needs his father! His dad and I have been dating for 5 years and were advised not to marry due to his visa being near expiration. We continued on the employment based route, only to be denied for a business suite # left off of a job posting by the company. Now, back to my question...no one can give an exact day that unlawful presence begins accumulating. If the clock has started, we want to know how long we have to continue these appeals?

No, my country has no heart when it comes to this situation! My boyfriend was recruited from Canada by one of our universities...they found and brought him here. Upon graduation he worked and paid taxes, then even invested in a US company that gave jobs to 15 USCs! We all have our own stories and in our situation, we are doing everything possible to follow the appropriate legal steps. Please advise to any suggestions you have. Thank you for your support!
 
txmom said:
His dad and I have been dating for 5 years and were advised not to marry due to his visa being near expiration.
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Who gave you that miserably incompetent advice? Did your lawyer tell you that, so they can milk you for money to handle the various appeals for the H1B/PERM? That advice is absolute garbage, unless they're specifically talking about marrying outside the US, where the lack of a valid visa would present a problem for him returning promptly to the US.

You are a US citizen and he entered the US legally, so if he marries you and you file the relevant paperwork he can stay while the green card process is pending even if his visa expires, unless they have already served him with the papers for removal proceedings. Marry him and file the papers this month and he'll have a green card by the end of the year. With him being married to a USC, the unlawful presence would not matter, unless he has left the US any time since accumulating unlawful presence or there is some other complication about his situation that you're not telling us about.

Regardless of who told you not to marry, fire that STUPID lawyer for not advising you of how simple your situation can be if you marry your BF.
 
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The attorney said if an immigration officer deemed the marriage invalid given how close it took place to visa expiration, then he could be banned from the US for life. This is a huge risk that we don't want to take. He's followed all immigration laws for 13 years, so why can't we take another less risky avenue, if there is even a small chance of catching an officer having a bad day? Marriage is sacred to both of us and we don't think immigration situations should influence that either.
 
txmom said:
The attorney said if an immigration officer deemed the marriage invalid given how close it took place to visa expiration, then he could be banned from the US for life.
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Still nonsense. You have a 2 year old child together and a 5-year relationship, which makes your case a slam dunk to easily prove you have a bona fide marriage. Even if some drunken insane interviewer denies your case you'll win the appeal.

If you don't believe me when I say this lawyer is feeding you nonsense, visit another lawyer and explain your situation.

He's followed all immigration laws for 13 years, so why can't we take another less risky avenue, if there is even a small chance of catching an officer having a bad day?
Click to expand...
The route you are taking now is riskier. Losing the appeal could be immediately followed by deportation and a multi-year ban from entering the US. Fire this lawyer ASAP, get married, file the marriage-based green card paperwork, and drop those appeals.
 
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Thank you for your suggestions and input. I'm definitely inclined to seek another legal opinion. In considering filing through marriage, how do we determine if removal orders were ever issued. I don't believe this has occurred, but is there a way to research this without drawing attention to us...just in case. Shouldn't there be a website to search such information? In the unlikely event that removal orders were in place, how would that affect a new marriage-based application?
 
They don't normally directly send a removal order, they first send a "Notice to Appear" to initiate the removal proceedings. If they did that, he would have received the notice or he/you would have otherwise learned about it through the various interactions with USCIS regarding his visa. So you can be 99.9% certain it hasn't happened.

But once they do initiate the proceedings, he becomes ineligible to obtain a green card through adjustment of status (whether marriage or any other way), until and unless he can convince the judge with enough evidence to overcome the reason for removal (which is rarely easy). So it is important to get the marriage-based papers filed before they initiate the removal proceedings.
 
O....M.....G !!

How insane is this???
How easy it is for insane lawyers to milk the un-suspecting ppl?

He could have easily done the marriage based AoS when he was in-status? H or F.

Jacko.....he is now out of status, he can not do AoS but CP..period....isn't it?

Maam, honestly... is your BF ok to marry OR is it he who drags all these to get the GC from some other method, than marriage to a USC?
Are you doling out money for all these?......call me paranoid, but I am serious!!
 
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txmom said:
The attorney said if an immigration officer deemed the marriage invalid given how close it took place to visa expiration, then he could be banned from the US for life. .....
Click to expand...

And you guys blvd it ?!!!!, i mean that part 'banned for life' ?!!
 
NuvF said:
Jacko.....he is now out of status, he can not do AoS but CP..period....isn't it?
Click to expand...

He can still do AOS if sponsored by a US citizen spouse.

But yes it is incredible how the lawyer fleeced them with all that H1B and appeals nonsense, and that crap line about how they would get denied and banned for life because of applying so close to the expiration date, instead of telling them to just file based on marriage and be done with it.
 
You're right, the lawyer has taken his fair share! My BF has had a long and positive history with them, so he's not willing to seek other representation just yet...I'm working on changing that :)
Update...
He received the H1 approval this week. I guess there is really no rush to marry anymore, or at least it can be on our own schedule. Not sure if he's required to leave the country for a new visa stamp...this is a little unnerving, since F1 out of status (D/S) is somewhat up to interpretation.
 
So if he is pursuing the employment based green card, which EB category would it be? EB3 is backlogged for years, and EB2 is also bad if he's from India or China.

But now that his H1 is no longer close to expiration, even that robber lawyer should admit that it is OK to go ahead with the marriage-based case. Although that lawyer will probably also want to handle the marriage-based case, even though most people don't need a lawyer for it.
 
I'm not sure which EB category it is, but he's definitely seeking that route to a green card now. Upon the H1 visa (1 year visa) approval last week, he's been quite clear that marriage is no longer a consideration as it had been before the approval. NuvF who wrote in was right on in his assumptions...
 
If he's in EB3 he would be nuts to pursue the employment-based route, considering that it's backlogged for 6 years and will probably get worse and more complicated (look at my signature, you'll see mine took 4.5 years, plus there was months of legwork before that). In addition to the backlog, he also has to worry about appealing the PERM denial. Expect 7-8 years plus $20K of legal fees along the way. Not to mention renewing his H1B every single year.

Ultimately, it seems the issue is really that he doesn't want to get married, and he's hiding behind immigration reasons.
 
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