legal status when filing 485 and travel

L

lsamp

Registered Users (C)
Our H1 / H4 expired sep 30 2001. on 25 sep 2001 H1 extn was applied and 485 applied in dec 2001. There was a RFE for the H1 in Jan 2002 and the lawyer never bothered to reply to RFE and we never bothered to follow up.
Since we did not get the H1, we could not apply for H4 for my wife.
We have valid AP and EAD. Can my wife safely travel to India and come back (through a secondary inspection if required)? (Technically she was without a valid visa - No H1, H4,485 or EAD between 10/01/2001 and 12/20/2001 - the 485 RD.)
We have not travelled to India for 3 years because of this and now there is a need to travel.

Is the 485 approval at risk because it was filed at a time when my wife did not have a valid visa?

Thanks in advance for your feedback.
WAC 02-077.
 
It DEPENDS. Your H-1B extension denial notice should have a date when you are considered out-of-status. If the date is October 1st, then not only your travel ability might be hindered by the fact that you have overstayed, but also your Green Card.

You see, while your extension of status application was pending, everything was OK, because it was protecting your legal status here, and allowing you to work. And filing I-485 in that situation was perfectly normal, because you were not out-of-status. But when the extension is denied, INS usually says when you will be deemed out-of-status, whether on the date of denial or on the date of the previous status expiration...

So, this situation is not that simple. I suggest to get back to your lawyer and clarify these things with him/her.

And why did s/he not reply to the RFE on your H-1B extension? What kind of sick and twisted attorney is that?
 
Thanks for the feedback, BM. I will send an e-mail to the lawyer about his thought on this. I have no clue as to why he he did not reply to the RFE. I do not know if the H1 has been approved or rejected as the online status was never updated.
Also, a lot of H1 extensions from that company were being rejected.
 
Rest assured, your H-1B extension was denied. INS expects a reply for an RFE within a certain timeframe. After that, they issue an Intent to Deny notice, for which, again, there is a reply timeframe. After that, the petition is ultimately denied. The online status may not be a very reliable one, if you know what I mean.

The fact that many H-1B extensions were denied for your company should be troubling you, actually. If it has something to do with the financial abilities of the company, your Green Card could be denied just as well (if you ever get an RFE, that is).
 
used AC21

used AC 21 twice and am no longer working for that company. RFE is a huge risk now because I just quit my full time job - job responsibilities was no way close to what was promised.
So in the job market again.
 
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