I-485 : Complications - Can somebody help??

M

Moses SK

New Member
Hi,

This is regarding my wife\'s application for Adjustment of Status. Here\'s the story in brief.

After my marriage in July 2000, I brought my wife to the us through H4 from my previous company (say X). After I came here I switched to a different company (say Y). I never applied for a separate H4 for my wife through Y (the biggest mistake of my life!!!). The I-94 from X was valid expired on 10/31/01. Since we realized this a bit late, we decided to go to canada to get her a new Visa Stamp and I-94 using my H1 visa from Y. She got her new visa stamp issued on 11/28/01. She was also issued a new I-94 at the border with a issue date of 11/29/01 and expiring on 04/23/03.

In parallel, she also put through a separate application for change of status (I-539) on 10/30/01. This application got approved on 12/20/01 and is valid upto 04/23/03.

The real complication began when my lawyer realised she had also applied for a H1 with another company (say Z) on 11/00. But she never really joined the company (never went on their payroll). But since the H1 was approved, my lawyer says her H4 from X became invalid. Moreover, since she never joined Z after she got her H1 even this H1 is not invalid. And she was in this invalid status from 11/00 to 11/01 - about 1 year.

Since she has been out of status for more than 180 days, my lawyer says that she has to apply for a supplement 254(i) along with her I-485 application. This supplement requires that we prove her presence in the US on a specific date - 12/21/2001 through some documentation like a credit card statement, phone bill, etc. We are also required to send a penalty of $1000 along with this.

My questions regarding these are :

1. Has anybody applied for I-485 along with 245(i). Are they very strict about the 12/21/2001 proof of presence? Why I am asking this is since we don\'t have documentation for the exact date but bills for dates before and after.

2. Can this be done any other way?

Thanks in advance.
 
I dont think the CoS to H1 happens unless you join the job.

There are so many cases, in which the H1 comes thru and then one
decides not to join ( either stay in the same job or simply not
join at all ) ...in which case there is no need to worry at all.

My wife had been in a similar situation, company applied for H1
and while application was in progress, told her not to join, so
she got another offer, another H1 filed...now the first H1 is
approved...she never joined, still on H4, then the next H1 comes
in and she joins. The lawyer confirmed that the H1 status kicks in
the date you join the payroll or actually come on board.
So my point is if you can prove that at all times she had a
valid I-94 for H4 status, she is fine.
 
Invalid Status

Let me first state that I am not a lawyer, but I would suggest you take a second opinion from another lawyer.
I would argue that since your wife never worked for company Z and presumably did not file a I-9 Employment Eligibilty Verification with company Z, she never really had/activated her H1 status.
Since, she has applied for her extension of H4 status before its expiry on 10/31/01 and INS has approved of the extension and additionally you have stamped the visa extension in Canada, I would argue that she has been in valid H4 status all along, and if one is terribly finicky, may at best have been out of status very briefly for about a month--we have to check the documentation and dates. Normally, even accounting for 9/11, the INS would be sympathetic and positive in your favor in such circumstances.File a normal I-485 on that basis and if the INS insists on 245(i) and $ 1000 fine you may do that.
Good luck!
 
Will not agree with tt tt, and lawyer is correct

It does not matter if you join or not , once your COS is approved( in your case from H4 to H1 ) , your wife status is H1 even she does not enter into payroll, i.e reason many people who did H4 to H1, will change back to H4 status if they can\'t find a client or if they cannot enter into payroll, mainly to not go out of status.
 
No Title

I don\'t think there is any problem. When your wife got H1, she has 2 months or 60 days before joining the company. If she is not in payroll withing 60 days, its like she never took the offer. So still your old H4 is the valid status.
 
No Title

I think all of your are seeing only part and making comments without knowing what it is. I suggest take second opinion with good lawyer.

This is what has happened when she filed for h1 they would have applied for change of status and her I 94 would have superceded the previous I-94. For some cases they don\'t apply change of status and you don\'t get new I 94 thenk it is ok but if you get new I-94 that means your status has changed from H4 to H1.

Check this out with good attorney.

Good Luck.

/Vguru
 
There is no compulsion ever to join a job.

I have checked this with my lawyer, the COS does not happen if
the job is not taken. In my wife\'s case the company went down before
the H1 got even approved, what meaning has a H1 approval then.

Plus when we filed for the I-485 the lawyer attached the H4 I-94,
the H4 extn I94 and then the H1 approval notice with I-94 from her
current company...there is no break in status visible anywhere...
not that she ever worked without permission and was never ever out
of status as H4 since there was always the latest I-94 that was
valid.

what the original poster problem is that there is a break in
the I-94 validity ( from the end of oct to end of Nov ) !
that could be serious.
 
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