My NIW case was approved at VSC and question about I-485 filing under out of status

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flybird

Registered Users (C)
My I-140(NIW) was approved at VSC, question about I-485 filing under out of status

Hi all,
My attorney just told me that my I-140(NIW) was approved at VSC. Detail:

RD: Feb, 02
REFec.,02
REF RD: March, 03
AD: 4/14/03

Postdoctoral Fellow in Cancer Research, Over 30 publications and presentations. 1 patent pending. Total 13 strong supporting letters.

My question: I am in H1. I havn't apply I-485 yet. My wift is in USA now. But my wife is out of her F-1 status for around 4 months. Is there any possible way that she still can fill the I-485 with me? Or I need to wait for her getting F1 reinstatement first? If her reinstatement gets declined by INS in future, what should I do? I appreciate your help very much.

Wish all of us have a very good luck!


Flybird



:eek:
 
Last edited by a moderator:
Yes.

She can file I-485 with you under section 245(i) by filling out I-485 supplement form and paying $1000.

You will have to file I-539 (change of status) also.
 
Originally posted by flybird
Hi all,
My attorney just told me that my NIW was approved at VSC. Detail:

RD: Feb, 02
REFec.,02
REF RD: March, 03
AD: 4/14/03

Postdoctoral Fellow in Cancer Research, Over 30 publications and presentations. 1 patent pending. Total 13 strong supporting letters.

My question: I am in H1. But my wife is out of her F-1 status for around 4 months. Is there any possible way that she still can fill the I-485 with me? Or I need to wait for her getting F1 reinstatement first? If her reinstatement gets declined by INS in future, what should I do? I appreciate your help very much.

Wish all of us have a very good luck!


Flybird



:eek:
Click to expand...

Didn't you say you got approved? How can you file 485 for your wife when your case is already approved?
 
Re: Yes.

Originally posted by Edison_NJ
She can file I-485 with you under section 245(i) by filling out I-485 supplement form and paying $1000. You will have to file I-539 (change of status) also.
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What makes you think she's eligible for 245i? His priority date is after April 2001, so 245i for him. I believe she's covered under 245k, but the I-485 needs to be filed right away. Once the 180 days are over, that window closes.

If the wife's I-94 has expired, she's accumulating illegal presence and will be subject to the re-entry bars, so Consular Processing will also be out. This could get really, really ugly if something isn't done quickly.
 
Re: Re: My NIW case was approved at VSC and question about I-485 filing under out of status

Originally posted by Awaiting approval
Didn't you say you got approved? How can you file 485 for your wife when your case is already approved?
Click to expand...

His I-140 is approved.
 
Thank you guys very much! Yes, I mean my I-140 was approved.

TheRealCanadian, on my wife's I-94, expiration date is D/S. Since she is out of her F-1 status, does that mean her I-94 has expired and she's accumulating illegal presence in US? Please clarify.

I read the 245(k).

http://www.immigration.gov/lpBin/lpext.dll/inserts/slb/slb-1/slb-19/slb-6243?f=templates&fn=document-frame.htm#slb-act245k .

It looks like to me, 245(K) is for application based on employment. While my wife is the beneficiary of my I-140 application, can her I-485 application count as based on employment?

BTW, we havn't file I-485 yet, since we havn't come up a solution to my wife's status problem.

Many thanks!
 
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Is Your wife eligible to apply for 485 ?

Hi,

If your 485 is already approved then how can you apply for your wife now . I think should have applied for 485 for your wife , when your 485 was pending.

The first question to be asked here is your wife eligible to apply for 485 at all .

I am a little surprised here about all the discussion going on without raising this basic question.

Anyway good luck to your wife.

swamy00
 
SEC 245( i ) is not for all out of status cases

Life Act is not for Every One.

You should fit in to one of the following category to make use of Life act ie SEC 245 (I)

Be the beneficiary of a Form I-130 immigrant visa petition ("Petition for Alien Relative"), or Form I-140 immigrant visa petition ("Immigrant Petition for Alien Worker"), or Form I-360 ["Petition for an Amerasian Widow(er), or Special Immigrant], or Form I-526 ("Petition for an Alien Entrepreneur") filed with the INS on or before April 30, 2001, (either received by INS or, if mailed, postmarked on or before April 30, 2001) or
Be the beneficiary of an application for labor certification filed with the Department of Labor (DOL) according to DOL rules on or before April 30, 2001, and
If the qualifying visa petition or labor certification application was filed after January 14, 1998, have been physically present in the United States on December 21, 2000.

You can also check at

http://www.immigration.gov/graphics/publicaffairs/newsrels/life245irel.htm
 
Originally posted by flybird
TheRealCanadian, on my wife's I-94, expiration date is D/S. Since she is out of her F-1 status, does that mean her I-94 has expired and she's accumulating illegal presence in US? Please clarify.

It looks like to me, 245(K) is for application based on employment. While my wife is the beneficiary of my I-140 application, can her I-485 application count as based on employment?
Click to expand...

You're right. I forgot that F and J I-94s are marked "Duration of Status". If she's not in status, then the I-94 (I guess) is expired and illegal presence may be accumulating. Now I am not a lawyer so anything I tell you is worth every penny you paid for it, and should be verified by an attorney (or two).

I do not know if 245k will cover your wife. I *think* it will, since she requires an immigrant visa, and that visa will come from the EB pool, not FB. Therefore, I think she's covered under 245k.

I think you and your wife have every incentive to file your I-485 before her 180 days are up. At the end of those 180 days she will definitely lose the benefit of 245k if she's covered. If she's accumulating illegal presence (which I think is happenning since the I-94 is valid only as long as the status) then after 180 days she is subject to a 3 year re-entry bar, eliminating her ability to do a consular interview. Neither of you are eligible for 245i, so her only hope would be to wait an unknown number of years, never leaving the US, until 245i was reinstated.

The other option your wife has is to return to her home country, and get an H-4 visa at the consulate and return. At that point she'll be legally admitted and in status, when she files. Section 245 makes my head hurt, but I *think* that it only cares about your status since your last entry to the US. I may be (probably am) wrong on this one.

Put it this way, I'm not sure if you are eligible to adjust right now. I think you probably are. I'm far more confident that if your wife waits until after the 180 days are up, she'll be in a lot worse situation than she is now. Put the package together, consult an attorney (or two) for about $100 each, and do SOMETHING before those 180 days expire.
 
TheRealCanadian, your advice is really a tremendous help to me. Thank you very much. After gathering all the possible solutions, my plan is as below. Please take a look.

1. File F1-reinstatement as soon as possible, should be done in the next week.

2. File our I-485 together in next month. (my wife¡¯s F1 expired in Dec., 2002, we are lucky that she still have two more months, if she is really eligible to adjust.) Is it a good idea to file the I-485 after we get the receipt of her reinstatement application from INS? Or no advantage at all.

3. If her reinstatement is approved, we will file an H-4 application for her. (We do not plan to apply for EAD. I would like to keep H1 and she need to take care of our babies at home.) If no approval for reinstatement, INS will ask her to leave US because they may not know our pending I-485, can she still stay here ignoring the INS¡¯s decision based on F-1 reinstatement? Or she has to file something to explain she is waiting for I-485?

Does the above plan sound reasonable?

4. Getting a H-4 visa at our home country is really not an option for us at this time since some other considerations. Another possible way: after filing her F1 reinstatement, only submit my I-485. Around four months later, we may know her reinstatement result. If approval, file her I-485 since her history is forgiven. If not, from what I learned she will be out of status at the date the INS officer make the decision. Is that possible she is still covered by 245k although that INS asks her to leave at that time?

I asked so many questions. Sorry about that. Thank you, your efforts, your time.
I will also consult with attorney(s).
 
Originally posted by flybird
2. File our I-485 together in next month. (my wife¡¯s F1 expired in Dec., 2002, we are lucky that she still have two more months, if she is really eligible to adjust.) Is it a good idea to file the I-485 after we get the receipt of her reinstatement application from INS? Or no advantage at all.
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I don't believe that there is any advantage to waiting for the F-1 reinstatement receipt, and lots of drawbacks if you pass the 180 days. On what grounds are you requesting reisntatement? Is she in school full-time? If she's not, I doubt that the reinstatement would be approved.

Another possible way: after filing her F1 reinstatement, only submit my I-485. Around four months later, we may know her reinstatement result. If approval, file her I-485 since her history is forgiven. If not, from what I learned she will be out of status at the date the INS officer make the decision. Is that possible she is still covered by 245k although that INS asks her to leave at that time?
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Don't even dream of doing this. Here's the problem - she's out of status now and possibily accumulating illegal presence, and if the reinstatement is denied and she's past the 180 days, she is completely out of options. You're basically hoping that the INS is feeling unusually magnanimous and generous, and if the wife is not in school they're not going to be generous.

Personally, I'd make 110% sure that the I-485 is filed before the 180 days are up, or that you can GUARANTEE that the F-1 will be reinstated before day 180. Since I doubt you can, just file the I-485, and file an I-131 for AP. That way your wife can skip filing for the H-4. If she's out of status, they won't let her change anyways.
 
Good advice, the realCanadian, I agree. File the I-485 for both of you ASAP. Plus, once you filed I-485, you will be considered in-status from the period of the filing date to adjuncting date. (You can not re-instate your wife's F-1 or change to H-4 after I-485)And consider this, most I-485 cases filed in July 2001 were approved around April 2002. Now one year later, BCIS are still processing cases filed in Nov, 2001. Five months of wait resulted in more than one year delay!
 
Hi Flybird:

My sister is applying for her EB1/NI1W and it would be very helpful if she could exchange some emails with you. Can I get ur email address.

thx, Ani
 
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