I-485 denied for derivative... is it possible?

[MrBrazil]

I have a question for the gurus here... if the primary applicant is approved for I-485 (with I-140 and continous legal status), but denied for derivative (wife - because although she can demonstrate continuous lawful presence through contiguous visas and approval notices, did not work for a year back in the 90s while on an H1 for a company, but did then switch back to spouse's visa) what are the implications or recourse?

I believe 245(k) provisions would not apply as the length of time exceeded 180 days.

Has anyone ever seen a primary 485 approved and a derivative 485 denied? What can families do in that case, especially if there are US born children in the family?

 

[pralay]

Did not fully understand your point. What do you mean by "did not work for a company on H1 for a company"? She was on H1 and she was employed by the H1 sponsoring company, right?

Bottomline, if you spouse has a valid status either on H1 or on H4, she should be fine. If your spouse lost H1 job in past and she immediately switched back to H4, there is no issue.

 

[MrBrazil]

Did not fully understand your point. What do you mean by "did not work for a company on H1 for a company"? She was on H1 and she was employed by the H1 sponsoring company, right?

She had an H1 for part-time employment with a company that lasted three years, but for the last year she did not work for them (or anyone). Before the expiry of her H1, she left the country and re-entered on a spouse's O-3 visa (my visa was O-1).

So she was supposed to be working for a year on the final year of her H1, but she wasn't. In retrospect, as soon as she stopped working for the company that sponsored her H1, she should have left and obtained an O-3, but at the time we were not aware of this.

We are talking pre-2000 here, so it could come up during extensive RFE or interview if someone were really connecting the dots between all the documents.

 

[ginnu]

She had an H1 for part-time employment with a company that lasted three years, but for the last year she did not work for them (or anyone). Before the expiry of her H1, she left the country and re-entered on a spouse's O-3 visa (my visa was O-1).
------- I dont see any problem becase she went out and got O-3 visa based on your O-1 and entred on O-3 the day she entred on O-3 her status changed to O-3 and was not supposed to work on remaning time on H1 becase she entred on O-3 status, if she has maintained O-3 then no problem for her as derivative.
So she was supposed to be working for a year on the final year of her H1, but she wasn't. In retrospect, as soon as she stopped working for the company that sponsored her H1, she should have left and obtained an O-3, but at the time we were not aware of this.

We are talking pre-2000 here, so it could come up during extensive RFE or interview if someone were really connecting the dots between all the documents.

 

[tammy2]

I think you are confused between over stay and out of status. Out of status should not create the problem. If she has overstayed her I-94 then it might be a problem. Since she re-entered there should not be any problem. The problem comes only if they ask for pay slips or W2 for that period. I do not think they will all those things to derivative applicant.

Moreover since it before year 2000 even if BCIS raise the problem you should be able to use 245(I) by paying $1000.

When did you apply for the Labor?

 

[TheRealCanadian]

I think you are confused between over stay and out of status. Out of status should not create the problem. If she has overstayed her I-94 then it might be a problem.

Out of status and illegal presence (overstay) both create problems for an adjustment of status.

Since she never accumulated illegal presence, you can do one of two things. If you qualify for 245i (PD before 4/30/2001, physically present in the US on 12/22/2000) then she can pay the $1000 fine and file form I-485A once USCIS issues the NOID in her case. (Don't bother until this step happens.)

The other option is consular processing, but it might be quicker and cheaper to pay the fine.

 

[MrBrazil]

She does not qualify for 245(i) due to the specific dates, or (k) due to the length of time she did not work. There was no period or gap between any I-94s, but as I understand now, the change status itself (i.e. "out of status" for a period longer than 180 days) is the real problem, even though she was not working or anything and I was supporting her. The absence of a W2 for her for that specific year would be the issue, if we are asked for such.

In the case of primary receiving I-485 and spouse getting denied, are there any other provisions of law one could turn to. There are US citizen children involved here too. If she is denied, an appeal seems unlikely, so my belief is that we would all leave because I cannot split family.

We hope for best, as previous writer said, maybe derivative RFE is unlikely. But if so called upon we would tell the truth. I submitted tax returns with my 140 as demonstration of means to support my wife (W2's were not required), showing support well above poverty baseline.

I notice some RFEs being sent recently which typically ask for LAST three years returns, 03/2/1, some with W2s, all of which would be fine.

 

[tammy2]

http://www.murthy.com/news/ukbesens.html

Another one from : http://www.murthy.com/rumor.html

Rumor : A person in H1B status begins to accrue unlawful presence the day after the person is laid off. Posted Aug 15, 2003

Clarification : This is not true. As discussed in a rumor posted January 21, 2003, a person in H1B status who is laid off is no longer in status as of the day after the layoff. However, in order to accrue unlawful presence, the person's I-94 validity date must have expired, or the BCIS must make a finding that the person has been unlawfully present in the U.S. The distinction is important, because being unlawfully present for more than 180 days will generally result in one's being barred from re-entry to the U.S. for three years, or for 10 years if out of status for over one year. On the other hand, being out of status does not carry the same bar to re-entry, unless the person is found by the BCIS to have violated status, then the time towards the 3-year or 10-year bar will start accruing from the date of the BCIS or CBP determination. While this does not mean that a person who is laid off should remain in the U.S. until the I-94 card expires, it is helpful to understand that one may take a risk and stay back when one is trying to wrap up affairs in the U.S. immediately following a layoff.

On a separate note, a person who is out of status (but who may not yet be unlawfully present) will not be able to obtain a change of status or an extension of status from the BCIS from within the U.S. Such a person should generally file for a consular notification to avoid obtaining a BCIS determination of "unlawful presence."


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[TheRealCanadian]

In the case of primary receiving I-485 and spouse getting denied, are there any other provisions of law one could turn to. There are US citizen children involved here too. If she is denied, an appeal seems unlikely, so my belief is that we would all leave because I cannot split family.

There's always Consular Processing. She is eligible for that. What's her nationality? You should investigate how Follow To Join works there.

This isn't the end of the world. USCIS scrutiny of derivative cases isn't particularly strong and the matter may not come up. (DO NOT VOLUNTEER THIS INFORMATION, BUT PROVIDE IT IF ASKED.)

 

[tammy2]

There's always Consular Processing. She is eligible for that. What's her nationality? You should investigate how Follow To Join works there.

This isn't the end of the world. USCIS scrutiny of derivative cases isn't particularly strong and the matter may not come up. (DO NOT VOLUNTEER THIS INFORMATION, BUT PROVIDE IT IF ASKED.)

She has already entered US with new visa stamping after that incedent. Then also she needs CP?

 

[MrBrazil]

She has already entered US with new visa stamping after that incedent. Then also she needs CP?

Tammy, and all, thank you for the information. She left and reentered the US with a new O-3 visa before the expiry of the HB in question. Early following year, she was offered another job and she left and reentered with a new H1-B visa, which she remained on until her work was completed. She then switched back to O-3, which was the status she was in when our 485s were filed.

The wording about lawful presence, out of status, illegal presence, etc. gets very confusing, and we will consult attorneys if the issue is raised.

Our case is coming close to adjudication. I received no RFE for my 140 (2 1/2 years ago, which was approved in six weeks), and we have completed second fingerprints recently. We opted to not do CP.

My wife is currently working on her second EAD (third just applied and approved), and she started her own business. It's just this old period, over five years ago that may be of concern to us. Though no gaps in I-94 validity periods exist, the status could be raised if an RFE for derivative gets issued, or we get an interview that probes deep history.

Of course, we will not volunteer any information we are not asked, but reveal the facts if we are. I am not even sure, based on the murthy rumour, if this is even an issue for us. I mean, if she stopped working for the original company and started working for another one on the original HB, then I could see that would be an obvious violation. But that's not what she did.

Sorry if I seem so worried; we have been here a long time and as we get near the end of the process I would hate for a minor issue to undo everything we have worked so hard to achieve.

 

[TheRealCanadian]

She has already entered US with new visa stamping after that incedent. Then also she needs CP?

I can't recall if 245k or 245i covers periods between the last entry to the US and the I-485 filing, or if it's cumulative.

Either way, our original poster is best off sitting tight and seeing what happens. It's pretty unlikely that USCIS will notice.

 

[MrBrazil]

I can't recall if 245k or 245i covers periods between the last entry to the US and the I-485 filing, or if it's cumulative.

The relevant sections of INA law that I read indicate that the 180 day period is 'reset' after each legal entry with inspection at POE with regards to 245(k).

Either way, our original poster is best off sitting tight and seeing what happens. It's pretty unlikely that USCIS will notice.

This is my hope. However, if an RFE is generated for her requesting proof of continuous lawful status, we have contiguous validity demonstrated through visas, approval notices, entry stamps and such.

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In a worse-case scenario, if the USCIS probes and interprets things differently and denies her 485 on the grounds of being in the wrong status for a period of time >1 year (which would seem to invoke the 10 year ban), but I get approved, and we have had two infant US citizen children together, would there be any avenue of appeal? Or is it simply a done deal.

 

[ginnu]

Tammy, and all, thank you for the information. She left and reentered the US with a new O-3 visa before the expiry of the HB in question. Early following year, she was offered another job and she left and reentered with a new H1-B visa, which she remained on until her work was completed.
She then switched back to O-3, which was the status she was in when our 485s were filed.
---------------- To me it seems unnecessary discussion your wife was on O-3 when she last entered US and had valid I-94 when she filed I-485. She was OK, what is the problem???The wording about lawful presence, out of status, illegal presence, etc. gets very confusing, and we will consult attorneys if the issue is raised.

Our case is coming close to adjudication. I received no RFE for my 140 (2 1/2 years ago, which was approved in six weeks), and we have completed second fingerprints recently. We opted to not do CP.

My wife is currently working on her second EAD (third just applied and approved), and she started her own business. It's just this old period, over five years ago that may be of concern to us. Though no gaps in I-94 validity periods exist, the status could be raised if an RFE for derivative gets issued, or we get an interview that probes deep history.

Of course, we will not volunteer any information we are not asked, but reveal the facts if we are. I am not even sure, based on the murthy rumour, if this is even an issue for us. I mean, if she stopped working for the original company and started working for another one on the original HB, then I could see that would be an obvious violation. But that's not what she did.

Sorry if I seem so worried; we have been here a long time and as we get near the end of the process I would hate for a minor issue to undo everything we have worked so hard to achieve.

 

[MrBrazil]

To me it seems unnecessary discussion your wife was on O-3 when she last entered US and had valid I-94 when she filed I-485. She was OK, what is the problem???

There was a period before 2000 where she worked for two years on a three year H1B, but did not work during the third year (of her own choosing). Before the H1B expired, she left and re-entered on an O-3. So, although there are no gaps in terms of I-94 validities, there is a question of status for that last year of her H1B, where she was presumably should have been working (it was a part time job), but she wasn't.

 

[ginnu]

There was a period before 2000 where she worked for two years on a three year H1B, but did not work during the third year (of her own choosing). Before the H1B expired, she left and re-entered on an O-3. So, although there are no gaps in terms of I-94 validities, there is a question of status for that last year of her H1B, where she was presumably should have been working (it was a part time job), but she wasn't.

To makle the case clear provide the below info:
She got her first H1B on ......
she entred US on H1B date...
her I-94 was valid till....
Her H1 was valid till....
She worked with XYZ company till date.....
She went out of US on date.....,
She got O-3 Visa stamp on date.....
She entred US with O-3 visa on date....
Her I-94 that she got when she entred on O-3 is /was valid till.....
Her I-485 filing date is..... her I-485 filing reciept date is....

** you are on O-1 Visa and you filed I-485 and your spouse filed I-485 as dervative with you. Did you file I-485 based on LC?
When your LC was filed......
Or being on O-1 you have filed I-140 directly under extraordinary ability?

(becase many O-1 are also qualified for EB1)

 

[ghost-rider]

if her H1 in 3rd yr was not revoked ( means company had not send a letter to INS to terminate her H1) till she went out of country it will be very difficult for IIO to spot that.