H1B lost job, wife's naturalization application under processing...

[leviathan23]

Hi,

I lost my job since 2 months, on H1B with I-94 unto SEP 2010.

My Wife has GC and she filed her N-400 for naturalization, which might take 4 more months to finish.

• What is my current status conditions? out-of-status or Unlawful presence?
• Does staying in US like this for more then 6 month create a problem for me when I file I-130?

Please help, I tried to find it in FAQ list but there wasn't any specific answers for such situations.

Levi

 

[ilovethe80s]

Hi,

I lost my job since 2 months, on H1B with I-94 unto SEP 2010.

My Wife has GC and she filed her N-400 for naturalization, which might take 4 more months to finish.

• What is my current status conditions? out-of-status or Unlawful presence?
• Does staying in US like this for more then 6 month create a problem for me when I file I-130?

Please help, I tried to find it in FAQ list but there wasn't any specific answers for such situations.

Levi

I'm thinking you are "out of status" but NOT "unlawfully present." (back me up here guys).

I had a similar situation. My H1B status was good through May 2007, but I was laid off from work in Feb 2007. I was "unlawfully present" from May 2007 through August 2008 (when my husband became a USC and filed for my I-485; my I-130 was filed in 2004, when my husband was still a GC holder, and I was still legally on H1B and working).

My take is, it will all be irrelevant when your spouse becomes a citizen, but I understand your anxiety at this time. I went through the same thing.

Good luck to you and sorry I wasn't much help. Just sharing....

 

[mask369]

Hi,

I lost my job since 2 months, on H1B with I-94 unto SEP 2010.

My Wife has GC and she filed her N-400 for naturalization, which might take 4 more months to finish.

• What is my current status conditions? out-of-status or Unlawful presence?
• Does staying in US like this for more then 6 month create a problem for me when I file I-130?

Please help, I tried to find it in FAQ list but there wasn't any specific answers for such situations.

Levi

The moment you lost your job ( your employer reports the USCIS that they let you go) you are out of status ( or unlawful presence ) irrespective of your I-94 or visa stamp date in your passport. I believe you get a few days (or a few weeks) to leave the country, unless you have an pending petition.
Although your overstay (illegal stay) might not impact your I-130 petition but you need to have a strong evidence to prove your relationship to your spouse.
The big redflags for most of the family based petitions are interracial relationships, too much age difference between spouses and the beneficiary being out of status.
" I am not a legal advisor and use my advise at your own risk"

 

[TheRealCanadian]

The moment you lost your job ( your employer reports the USCIS that they let you go) you are out of status ( or unlawful presence ) irrespective of your I-94 or visa stamp date in your passport. I believe you get a few days (or a few weeks) to leave the country, unless you have an pending petition.

Not exactly.

Once you stop working, your H-1 status is lost and you are out of status. There is no grace period. You do not accumulate illegal presence until either the expiry date of your I-94 passes, or your employer reports to USCIS that you are no longer employed (ie. cancels the H) and USCIS notifies you that you are out of status.

Although your overstay (illegal stay) might not impact your I-130 petition but you need to have a strong evidence to prove your relationship to your spouse.

If it is an I-130 based on being an Immediate Relative (spouse, parent or minor child) of a US citizen, there is no "might". Overstay or being out of status cannot be used as a grounds to deny the petition, although it may make USCIS question the legitimacy of the relationship. If the marriage took place before the alien went out of status, it is not going to be a factor.

 

[Jackolantern]

[*]Does staying in US like this for more then 6 month create a problem for me when I file I-130?

No, but it can create a problem for your I-131 (Advance Parole), making it essentially useless for reentering the US if you travel outside before your GC is approved. Even if they approve the Advance Parole, they'll still refuse entry if your illegal stay has triggered the 3-year or 10-year bar.

 

[kittenKat]

You are out of status, so you have to sit and wait till your wife gets the citizenship. Then the whole process is really fast: 3-6 months. Just don't leave the country till you'll get the actual green card.

 

[Al Southner]

The moment you lost your job ( your employer reports the USCIS that they let you go) you are out of status ( or unlawful presence ) irrespective of your I-94 or visa stamp date in your passport. I believe you get a few days (or a few weeks) to leave the country, unless you have an pending petition.
Although your overstay (illegal stay) might not impact your I-130 petition but you need to have a strong evidence to prove your relationship to your spouse.
The big redflags for most of the family based petitions are interracial relationships, too much age difference between spouses and the beneficiary being out of status.
" I am not a legal advisor and use my advise at your own risk"

When did interracial couples become a concern for USCIS? In this free country, I thought people marry who they want, didn't Woody Allen molest and marry his stepdaughter? Wasn't she an orphan or adopted from Asia? If I recall correctly, Woody Allen was about 96 years when she married her and she was about 19-21years

The OP should just hope his wife's application for citizenship is a smooth sailing with no delays, and they file immediately for his greencard. Moreover, stay out of trouble and don't act as if you are unlawful in this country. ICE isn't in the business of nabbing H1B visa, but you will never know... Just hope for a smooth process. Good luck!!!!:

 

[envision]

The moment you lost your job ( your employer reports the USCIS that they let you go) you are out of status ( or unlawful presence ) irrespective of your I-94 or visa stamp date in your passport. I believe you get a few days (or a few weeks) to leave the country, unless you have an pending petition.
Although your overstay (illegal stay) might not impact your I-130 petition but you need to have a strong evidence to prove your relationship to your spouse.
The big redflags for most of the family based petitions are interracial relationships, too much age difference between spouses and the beneficiary being out of status.
" I am not a legal advisor and use my advise at your own risk"

Where do you get this from? This is America for God's sake. The days of restricting interracial marriages are over. Now stop with the misinformation

 

[leviathan23]

Awesome!! Lets summarize to help

If I lost my job while being on H1B, I'm out of status.
My unlawful presence start from the day my employer filed cancellation of H1B.

• Meanwhile, as my spouse's N-400 application is in process, I can hope for the best and wait till she becomes citizen even if I over stayed unlawfully or out-of-status in US without making any trouble.
• Till spouse gets citizen I should avoid any conflicts or being caught doing illegal activities.
• I shouldn't leave country untill I get GC, ideally.

Now, the redflag thing: I believe by "interracial marriage" mask369 was just trying to point-out that this might inline a case in which marriage is having some different motives, as in a formal contract. Its a usual logic strikes when we see something ODD. Though its a different story as we generally ignore these things in here.

Thank you all for your inputs. You guys are awesome...