Long processing times...

[zz03]

I am on an H-1B.

My then girlfriend was an F-1 student in a college between 8/01-5/02. Then she leaves the country for summer and comes back 8/15/02 w/ her F-1, with the intention of continuing her education. We got married 8/28/02 and she had to move here, so she couldn't attend college anymore. We could put together the paperwork for COS by November and applied for COS from F-1 to H-4 on 11/15/02...

Since my current H-1B was to expire in 9/30/03, we applied for an extension 4/15/03. And we filed her extension application together with mine at the same date...
We left the country for a summer holiday that summer and she got her H-4 at a consulate. We both entered with our valid visas ~8/15/03. We were then waiting for our extension applications to be approved...

We did not hear back from BCIS regarding the extension applications...

On 11/15/03, her COS was denied! This was a shock, but we didn't worry, since she had entered with a valid visa (H-4) and her extension application was in process. That's when my lawyer told me that her extension application would be considered void, as it was based on her COS application!

We have been under stress since then. The extension applications are still with the BCIS (the lawyers are constantly pinging) and since her extension application has become void, she has been in unlawful status since 9/30/03!

1. We cannot file a new extension application for her, since my extension application has not been approved yet. We are pretty sure it got delayed this late, because of her COS denial in the first place.

2. Plus, ANY application for her at this point will be denied, since she has been in unlawful status since 9/30/03, correct?

3. I heard about a "180-day" limit. If you stay in USA in an unlawful status for more than 180 days, then you face a ban to reenter the country for 3 years.

4. She can not leave the country to get her new H-4 at a consulate, because a-I don't have my extension approval yet, and b-she goes to school here (with H-4, of course)

5. Is there premium processing available for my already pending H-1B extension application? It looks like it is the only way for my wife to leave the country and get her new H-4 on time before her 180 days, which is 3/31/04. Otherwise, I don't know when the BCIS would get back to us -could be months!

6. Our attorney did not warn us about the consequence of our leaving the States this summer (her COS would be void, and so would her H4 extension application). We would have applied again with her new H-4 before 9/30/03 if we knew that! Maybe getting a letter from attorney summarizing the situation would help both in the consulate (for the new H-4) and at the border...

7. Should we apply for an MTR, even though it has been 2 months that her COS was denied? Would it change my wife's status to lawful, since there is an MTR/appeal in progress -This way her 180 days wouldn't have started 9/30, and she would still be in lawful status.


Eventually I should get the extension; however by the time I get it, it could be after 3/30/04; which is the 180-day limit for her.

We are really concerned and feel like we are stuck with no solutions; we are suffering mainly because of the long processing times and that our lawyer didn't tell us about the fact that her extension appl. would turn void just by our leaving the country this (2003) summer!

Do you have any suggestions?
Thanks a lot!

 

[jaxen2]

By going out of US when her change of status pending, she voided that application. Any amount of MTR cannot salvage that.

As long as your H1 (extension) is valid, her H4 status is preserved. She is not out of status, unless the H1 extension was also refused.

Yes, you can go for premium processing in your H1 application and can either reapply H4 extension based on the H1 approval or get a H4 stamp in a US consulate.

I would suggest that she apply for H4 extension as soon as the H1 approval is in hand. That way, she can avoid hassles at the US consulate. What if the US consulate denies H4 (they are a different animal - DOS and they can do whatever they want). But USCIS - since it has first hand knowledge of the denied H4 and your H1 extension, is more likely to approve the H4 without any question.

But if you have to travel out of USA again, I think getting stamp in the consulate is the only option.

 

[zz03]

Thanks for the post, jaxen2.

My H-1 already expired 9/30/03, and although I have a pending H-1 extension application (for 9 1/2 months now!), she does not have any extension application -thus I believe she's out of status.

I guess what we will do next is book a flight to home for her before her 180 days expire on 3/30/04. If by that time my extension approval comes, then it's fine -she'd get the H-4 visa at the consulate. If I don't get my H-1 by then... well then she has to stay out of US until when the approval comes... But you're right: She should apply for an extension for her H-4 as soon as I get my extension approved.

I think we are in deep 'problem'...

Originally posted by jaxen2
By going out of US when her change of status pending, she voided that application. Any amount of MTR cannot salvage that.

As long as your H1 (extension) is valid, her H4 status is preserved. She is not out of status, unless the H1 extension was also refused.

Yes, you can go for premium processing in your H1 application and can either reapply H4 extension based on the H1 approval or get a H4 stamp in a US consulate.

I would suggest that she apply for H4 extension as soon as the H1 approval is in hand. That way, she can avoid hassles at the US consulate. What if the US consulate denies H4 (they are a different animal - DOS and they can do whatever they want). But USCIS - since it has first hand knowledge of the denied H4 and your H1 extension, is more likely to approve the H4 without any question.

But if you have to travel out of USA again, I think getting stamp in the consulate is the only option.