I-485 applied when wife and son (H4)out of status

S

sudesh

Registered Users (C)
Hi
I need your help, suggestions, pointers,.... in resolving my immigration problem. Here is the summary of the dates/events to make things clearer.

Chronological order of the petitions (events)

(A) Entrance in the US

I-94 (Departure Record) expired on September 30, 2003 (H1B for myself)
I-94 (Departure Record) expired on October 10, 2003 (H4 for my wife)
I-94 (Departure Record) expired on October 10, 2003 (H4 for my son)

Applied for (I-129) H1B extension: July 3, 2003 (for myself)
Received Date: August 5, 2003
Notice Date: February 13, 2004

I did not know that my wife and my son needed to apply for H4 extensions separately. We assumed that all dependents were automatically included with my H1B petition, which my employer had filed in July 2003. So nothing was done for my wife and son. And we applied for visa revalidation, which was refused as tabulated below. In addition, we applied immigration petition (EB1 concurrent filing).

Note: There have been several errors from the immigration department: in the I-94, first they put me as an Indian citizen; my employer wrote back stating that I was an Australian citizen who was born in India. The immigration department sent us another I-94 with another mistake; this time putting me as an Austrian citizen. After writing again they finally got to the correct citizenship. The whole process is documented and I have the copies of all the letters. The process to correct the ‘citizenship’ mistake took several months. My employer is saying since it took so long and in the process of writing these letters back and forth she forgot to mention to me that I should apply for my family separately.


(B) Application for Revalidation

Forms DS-156 for myself, my wife and son, and
Form DS-157 for myself only were sent to US Department of State, Saint Louis.

Date sent: March 6, 2004
Date Check was encashed: March 12, 2004

Rejection
Unability to process the visa application: May 4, 2004
(Under Section 221(g) and PER SOP # 46)


(C) Concurrent filing under EB1 category

140 and 485 and EAD (for myself)
Immigration Petition for Alien Worker (I-140)
Received Date: April 28, 2004
Notice Date: May 5, 2004
Adjust to Permanent (I-485)
Received Date: April 28, 2004
Notice Date: May 5, 2004
Employment Authorization (I-765)
Received Date: April 28, 2004
Notice Date: May 5, 2004


I-485 and I-765 for (wife)
Adjust to Permanent (I-485)
Received Date: April 28, 2004
Notice Date: May 5, 2004
Employment Authorization (I-765)
Received Date: April 28, 2004
Notice Date: May 6, 2004

485 and EAD (for son)
Adjust to Permanent (I-485)
Received Date: April 28, 2004
Notice Date: May 6, 2004
Employment Authorization (I-765)
Received Date: April 28, 2004
Notice Date: May 6, 2004

Personal information about us
Myself: India born, Australian
Wife: India born, Australian
Son: Australia born, Australian
Also, we have a new born US citizen

Now I have several questions:
a) When I applied for the I-485 and I-765 for my wife and son, they were out of status. How does that affect our recently submitted petitions for the I-140, I-485 and I-765?
b) Are their petitions for I-485 and I-765 invalid, due to the fact that they were out of status at the time of filing the petitions?
c) What are the risks and issues involved here?
d) What is the best strategy to resolve (fix) the issue(s)?
e) Are my wife and son are out of status now?
f) Will there be the 3-year bar applicable to my wife and my son?

Should you have any question please feel free to ask me.

Thanks
 
Let us see what it means.

Relevant part of the section:

INA: ACT 221 - ISSUANCE OF VISAS

Sec. 221. [8 U.S.C. 1201]

....

(g) No visa or other documentation shall be issued to an alien if (1) it appears to the consular officer, from statements in the application, or in the papers submitted therewith, that such alien is ineligible to receive a visa or such other documentation under section 212, or any other provision of law, (2) the application fails to comply with the provisions of this Act, or the regulations issued thereunder, or (3) the consular officer knows or has reason to believe that such alien is ineligible to receive a visa or such other documentation under section 212, or any other provision of law: Provided, That a visa or other documentation may be issued to an alien who is within the purview of section 212(a)(4), if such alien is otherwise entitled to receive a visa or other documentation, upon receipt of notice by the consular officer from the Attorney General of the giving of a bond or undertaking providing indemnity as in the case of aliens admitted under section 213: Provided further, That a visa may be issued to an alien defined in section 101(a)(15) (B) or (F), if such alien is otherwise entitled to receive a visa, upon receipt of a notice by the consular officer from the Attorney General of the giving of a bond with sufficient surety in such sum and containing such conditions as the consular officer shall prescribe, to insure that at the expiration of the time for which such alien has been admitted by the Attorney General, as provided in section 214(a), or upon failure to maintain the status under which he was admitted, or to maintain any status subsequently acquired under section 248 of the Act, such alien will depart from the United States.

....

Since your wife and kid overstayed their visa limits so their revalidation was rejected.

Now for your questions:

a). It wil depend on many factors - no one can predict for sure. At the best you will get RFE, worst they may get deported and face 3 year bar. (There will be RFE for sure about your wife and son being out of status.)

b). The petitions for 140 and 765 is not invalid however as there is no such thing in law to make it invalid. Definitely your son and wife are out of status.

c). See a.

d). The best strategy is to go out of USA and try to get H4 stamped in Australia. (Never India - you are not Indian citizen). You may still get RFE but likelyhood of getting in trouble will be much less(you can state the facts of unawareness of law but you had best intent to abide by it). Also try to find out from your lawyer if 245(K) is applicable for your wife and kid(if yes, then they will not be able to leave USA till adjudicated). I am not sure if 245(K) can be used when primary applicant is not getting it. Please post your findings - it will help others too.

e). See a.

f). See a.

If you send wife and kid outside USA and then get them back - do not send new I-94 unless asked for it. I think this is fairly good way to come out of mess. This way there will not be any removal/deportation against them and most of the time people are not harrassed if they leave USA at their own and come back later.
 
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The problem is they have already over stayed. From October 2003 to April 2004. If they go out of country they may be subjected to the bar if the over stay was more 180 days. Even without punishing with bar consulate may not issue the visa at all.

The best course is to stay here. In any case primary is getting approval. They will not deport the beneficiary as primary can show hardship. If you are here even you can fight the BCIS. If you go out of country it is very difficult.

In any case going out of the country will add some more problems.
 
It is impossible to show how your dependent can help you in your hardship - you are supposed to take care of them and not other way round.

You face bar mostly if you are caught, not by default. The more time you spend in USA, without status, more will be your problem(and the likelyhood increase). I am sure you will not like to cross 365 days limit and face a much longer bar in entry. Everyone understands the best intent to follow law and that you were not aware. But it will be tough to convince your intent after you know your I-94 is over and revalidation is rejected.

BUT please bear in mind - I do not disagree to tammy2's apprehensions by any means. It may happen as extreme case(since your wife and kid are on H4 - it is very less likely that it will happen). Also you are not going to Chennai or Shanghai for revalidation, where staff is nuts.

Please visit:

http://www.immigrationportal.com/showthread.php?s=&threadid=103492

http://boards.immigration.com/showthread.php?s=&threadid=81102

http://boards.immigration.com/showthread.php?s=&threadid=90108

Hope you will be able to decide better.
 
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Staying away from Family without your kid is considered as hardship. In most of the Family based cases staying away from the Family is shown as number one hardship. This is taken is consideration in many judgments that have stopped the deportations. Once he gets his green card he can defend them on this bases.

By applying for I-485 along with expired I-94 he has given the proof of overstay to BCIS. This can cause the problem at any time.
 
tammy2 said:
Staying away from Family without your kid is considered as hardship. In most of the Family based cases staying away from the Family is shown as number one hardship. This is taken is consideration in many judgments that have stopped the deportations. Once he gets his green card he can defend them on this bases.

By applying for I-485 along with expired I-94 he has given the proof of overstay to BCIS. This can cause the problem at any time.
Click to expand...
I would not disagree that proof of overstay is there, but it is not about proof or hiding - it is about best intent. Once you are allowed to come in , case is much more defendable(USICS at one point agreed on entry). All the cases that I mentioned and many more, which are not reported, USCIS is well aware of overstay - they can track person based on returned I-94 to visa number and to person himself/herself.

Besides suggesting to stay means - asking one to be prepared for a longer bar.
 
Both My wife and my self are on H1s and we did our H1 extensions but not revaidated our visas.,as well as my son's who is 6yrs old.all of our original I 94s are expired. We want to file I140 ,485 etc after 3 or 4 months later once labor cleared .,

Is it necessary for me to revalidate my son's I94 before applying I140..etc?
His I94 is already expired .. will it be a problem if we apply for revalidataion
?
 
gc999999999 said:
Both My wife and my self are on H1s and we did our H1 extensions but not revaidated our visas.,as well as my son's who is 6yrs old.all of our original I 94s are expired. We want to file I140 ,485 etc after 3 or 4 months later once labor cleared .,

Is it necessary for me to revalidate my son's I94 before applying I140..etc?
His I94 is already expired .. will it be a problem if we apply for revalidataion
?
Click to expand...
Revalidation is not must for filing 140/485.

BTW, did you file H4 extension for your son?
 
Jharkhandi said:
Revalidation is not must for filing 140/485.

BTW, did you file H4 extension for your son?
Click to expand...

No,
Is it necessary to file H4 extesnion.,

if I file it now after 9 months of I94 expiration .. is there any problems for kid and for me?
 
gc999999999 said:
No,
Is it necessary to file H4 extesnion.,

if I file it now after 9 months of I94 expiration .. is there any problems for kid and for me?
Click to expand...
VSC has zero tolerence policy. Surely H4 extension will get rejected now. Get your son out of USA(his status is illegal right now.). Get his H4 stamped and re-enter USA.

Please visit the thread pointed out in my earlier post.
 
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I know some guys who are illegal here. Some one came on B1 visa and overstayed here. The other person is from UK who came with visa wavier and stayed for year. For these guys their attorneys suggest not to leave the country. If they are here in US attorneys can fight it out. If goes out of the country they cannot fight as consular decisions cannot be questioned in court.

Just to add
This is one of the reasons why I-485 is preferred over CP
 
tammy2 said:
I know some guys who are illegal here. Some one came on B1 visa and overstayed here. The other person is from UK who came with visa wavier and stayed for year. For these guys their attorneys suggest not to leave the country. If they are here in US attorneys can fight it out. If goes out of the country they cannot fight as consular decisions cannot be questioned in court.

Just to add
This is one of the reasons why I-485 is preferred over CP
Click to expand...

I agree with tammy2. If you leav US, you may have great difficulty in getting reentry. On the other hand, by staying in US illegally, you acrue time towards the 3 year and 10 years ban. For such cases, discussion forms are not the way to go, you have to consult a very good imigration lawyer and do it immidiatly !!
 
Jharkhandi said:
VSC has zero tolerence policy. Surely H4 extension will get rejected now. Get your son out of USA(his status is illegal right now.). Get his H4 stamped and re-enter USA.

Please visit the thread pointed out in my earlier post.
Click to expand...

Thanks Jharkhandi.,

I read the links....
What is the chance of getting H4 stamp at chennai as he is out of status for more than 6 months...

are there any h4 stamped like this..
could you give me any suggestions..
 
gc999999999 said:
Thanks Jharkhandi.,

I read the links....
What is the chance of getting H4 stamp at chennai as he is out of status for more than 6 months...

are there any h4 stamped like this..
could you give me any suggestions..
Click to expand...
That I cannot comment on(I guess no one can). You may like to post this in H1b thread for a better answer.

My feeling is that they should not give a hard time to a minor whose parents are in status. You can also put forward your ignorance on H4 extension and your best intent to be in status - these should help.

It is also worth noting what sertra2002 and tammy2 have stated(esp. since Chennai is known for giving hard time.).

Worst case scenario - you can file a CP for your son, if he is grown up enough to stay with relatives there in case of rejection. Be prepared for such a thing too. (I do not see such a thing happening really.)

The other way would be to file H4 extension and if rejected, appeal against it. It may take couple of months to years and your son cannot go out of USA(if he does - can't enter again.). Most likely, you will not win in appeal. You will end up paying more than air-ticket's price in the process(including lawyer's fees).
 
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