I-140 denied. F1 student out of status.

[behisaab]

I have been with my current employer on H1B since November 2005. I also received Labor Certificate (ETA 9089) approval in July 2007 for the same job. After this, we had applied for I-485/I-140 for me and my wife.

Recently I received a response to my application from USCIS saying my I-140 application was denied. The letter from USCIS mentions that they have denied my application as they never received original ETA 9089 (labor certificate).

My law firm had submitted a copy of the Form ETA 9089 with the original petition in July 2007, when they should have actually submitted the original document. After sending in the original, USCIS never received it and got misplaced.

Now, we have been asked by a new law firm to file H1 renewal for me and H4 for my wife. To make the situation worse, my
wife was advised to get out of SEVIS system by my old lawyer. This probably means that she went out of status as soon as I-140 got denied.

From international student center in her school, we have been told that she is currently out of status. To get back in status
she has to get a new I-20 or apply for re-instatement. The re-instatement could take months before we get to hear the decision. New I-20 can be obtained pretty soon but then she will have to go out and re-enter USA.

1. Which of the two is less risky - reinstatement or new I-20?

2. If we apply for H4 for her, we were told that it will get denied because currently she is out of status, and one can't simply go from out of status to
H4 (or for that matter any status). Is this true? She was removed from SEVIS on December 17th, 2007.

3. With the filing of I-140, the intent to immigrate becomes apperant. In this case, will they let her come in on I-20 and a valid F1 visa?

4. Since which date does she go out of status, the date I140 decision was made (June 13th, 2008) or the date when she was removed from SEVIS (Dec 17th 2007)?

5. What is the option for her to continue her PhD education without interruption - H4 or F1? She has 4 years to go, and she has full fellowship from the school so she doesn't work anywhere.

Please let me know if you know answers to any of these questions or know of a lawyer with whom I can discuss?

 

[nscagony]

As long her I-485 is pending she is not out of status. Appeal the I-140 denial and both of you will be in valid status until the appeal is decided. Use the time to prepare a new I-140.

 

[manwithnoname]

I dont have answers to all your questions, but here are my views:
1. Not sure.
2. She is ineligible to change the status to H-4. Only option is to get your H-1B approval (do premium processing if necessary) and let your wife apply for H-4 stamping at an US consulate in her home country.
3. Correct - 'F' visa does not permit dual intent. So, that's risky.
4. I-140 decision date.
5. Either way she can continue her PhD.

 

[behisaab]

Re:

After taking opinion from 5 different law firms, I decided to submit MTR and submitted it within 30 days of the decision date.

I remain in status because my H1 is still valid.

For my wife: we decided to get my H1 renewed and get her on H4. F1 is too risky because of the dual intent.

For this she will need to travel to some other country and get it stamped. Since I 485 is not yet denied she is in status and can do so. If the I-485 would have been denied, since she falls out of status, in order to get a visa, she would need to go back to home country (the rule of 'out-of-status days spent in USA' prevents one from going to any other country to get US visa. )

I have been told that she can go back to F1 once she enters the country on H4. And for this she does not need to travel out to change the status.

So lesson learnt is unless your I-140 is approved never ever take your name out of SEVIS. And always ensure you get a 'blue' original of LCA in your hand (or with your attorney).

I thought if someone is in same situation this information may be helpful. Feel free to contact me at behisaab@gmail.com if you have questions.


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Update on 8/25/2008:

Got I-140 MTR denied for the same reason. Original was not filed by earlier law firm. USCIS did not want to bend their rule and finally I have to pay the price for my lawyer's stupidity. Also, USCIS informed me that the lawyer had lost my original LCA and his claim of not having received it is completely false.

I got my H1B renewal approved, so I am safe. Need to go to India to re-stamp and also get my wife back in status on H4. Cananda / Mexico out of question since no dates available till end of October.
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Update on 7/25/2011:
Got new PERM approved in Jan 2010. Got new I-140 approved in Jan 2010. Got H1 and H4 renewed and stamped. One hint: Never go to Delhi for stamping H visas. I got delayed by 9 weeks.