NEW THREAD FOR 420 -CSOFT-NJ based company

[tammy2]

I guess CBP's argument is that you cannot do back-and-forth between AOS status and H1 status. And, you can switch to other status only if the current status is expired (H1 expired for H1 status and I-485 denied/withdrawn for AOS status).

Usually Chicago, New York or Houston does not have this kind of problem.
To add to this issue,
Usually with New H1 approval notice and old stamping officers will give expiry date on the I-94 from the new H1 approval notice.

This not same for the H4 visa holders. They will get the stamping only up to the expiry of their visa period even though they have extension of stay approved. Incidentally this happened today only with my friend's wife who landed in Chicago from India. Now she needs to apply H4 in Jan-2006.

 

[hiUS]

UN, Pralay, Tammy & others

Could you please help me to come out of this situation.

Myseld and my wife's visa is till Sep' 06 from company A.
After that I applied H1 thru CST and I am on payroll form Aug' 04 woth it.
I applied GC using sub. labor from CST in Dec' 04.
Got 140 approved and wife got her EAD and AP in Mar and Apr.
She is now working on her EAD and last week I got the denial letter for my 131 stating that it is denied because my 485 denied (I did not receive it till now). So, I am expecting that my wife and I will get the denail letters soon.
Now I made her stop working and I applied for new H1 thru another company C recently.
How should I make her to get back to H4 status?
Is going out of the country the only solution?
If so, Can she come back with the stamping made with Company A?
How many days can she be in US after her 485 denial, when should I make her to fly?
If i send her out of country (planning to send her to India), When she come back to US, at the POE, can she show my new H1 (from company C) and take the new I-94 to come back to H4 status or is there any other way?
Please help me in showing the possibilities of her comming back to H4 status?

 

[NewVictim2005]

According to consulate web-page in Toronto; if your education or work experience was not in USA then they will not stamp. However, if you went to school here or have a few years work experience then it shouldn't be a problem.

Another person I know from a different company;

Six years expired in 2004. Worked on EAD.

140 received RFE in April 2005, lawyer responded in July 2005. Two other people from the company who replied to RFE denied in August. I instructed him to get back onto h-1, 7th year. Lawyer didn't think it was possible, person already exhausted six years. After some convincing she applied for h-1, in premium processing.

One day before 140/485 denial, his 7th year got approved. (i believe, USCIS already knew 140 was denied as it takes some time to run through the system).

He went for stamping about two weeks after his 140 was denied. He had no problem getting the visa from Toronto and new I-94 card.

But as per Matthew Oh, If I485 is denied, the H1 extension(7th year) obtained on the basis of I485 or pending I140 or approved I140(revoked later) will also cease. Only if the appeal is filed, he can work on H1. If the appeal is not filed, after I485 is denied, if he work on extended H1, its considered unauthorised work and if he works for more than 6 months, he cant use 245(k). The stay here will be considered Illegal as Mr.Matthew said that H-1B status will cease and 3/10 year bar will be effective. Please correct me if I have not understood correctly.
Please see the Q & A below.
My I-485 has been pending and I have been working on H-1B which has been granted beyond 6 year-limit under AC 21 Act. I know that I will be able to extend my H-1B "indefinitely" until visa number is available and my I-485 application is adjudicated. What happens with my H-1B status if my I-485 is denied? Will my H-1B status be automatically terminated at the time of I-485 denial, assuming the decision is not appealed? A: If 485 applicant maintains H-1B visa status during the H-1B six-year limit, denial of I-485 will not affect his/her H-1B status and he/she will be able complete the H-1B period and even extend the H-1B status within 6 year limit. However, when he/she works in H-1B status beyond 6 year under AC 21, the extension is contingent upon pending I-485 application. Thus once I-485 is denied, his/her H-1B status will also cease under the AC 21 law.

 

[dyingforgc]

Could you please help me to come out of this situation.

Myseld and my wife's visa is till Sep' 06 from company A.
After that I applied H1 thru CST and I am on payroll form Aug' 04 woth it.
I applied GC using sub. labor from CST in Dec' 04.
Got 140 approved and wife got her EAD and AP in Mar and Apr.
She is now working on her EAD and last week I got the denial letter for my 131 stating that it is denied because my 485 denied (I did not receive it till now). So, I am expecting that my wife and I will get the denail letters soon.
Now I made her stop working and I applied for new H1 thru another company C recently.

Wondering how you were able to apply for new H1. H1-B quota is already exhausted on Aug-10th.

How should I make her to get back to H4 status?
Is going out of the country the only solution?
If so, Can she come back with the stamping made with Company A?
How many days can she be in US after her 485 denial, when should I make her to fly?
If i send her out of country (planning to send her to India), When she come back to US, at the POE, can she show my new H1 (from company C) and take the new I-94 to come back to H4 status or is there any other way?
Please help me in showing the possibilities of her comming back to H4 status?

 

[Kishore_l]

once 485 is denied, ead/ap is dead with it. Filing motion to reopen/appeal doesn't allow anyone benefits until they are reopened or approved.

The only benefit of mtr or appeal is that it will allow you to continue getting extensions on h-1 beyond six years. For purposes of h-1 extension, the decision is not considered final until all appeals have been exhausted. However, for 485/ead/ap purposes the same does not hold true.

If 485 is denied, EAD / AP is dead (Totally). Filing MTR doesn't buy you any time for EAD/ AP. Along with your MTR, you need to apply for EAD / AP. Even if your 485 is re-opned, your EAD / AP will NOT be re-opned. This is a first hand information from an Immigration officer @ VSC.

In My case, when my 485 was re-opened my EAD was also re-opened & approved. My wife's EAD never got re-opened / approved. When we called VSC, we're told that 485 benefitting applications will not be re-opened. We quoted that, primary got re-opened why not the spouse application. They were surpirsed about it and told us, it was a mistake. Tehnically speaking USCIS should not have re-opened the primary EAD either. She also added that, if you still want us to send the file for re-opening spouse EAD with the quote that "Primary is approved", most probably they may very well deny the primary the EAD and ask us to re-apply. We just thanked her for letting us know and told her that we will apply new EAD for spouse and requested not to do anything.

Bottom line, if any attorney told you that if MTR is applied for 485, it validates EAD / AP until a new decision is made is WRONG. Even my attorney told me the same. Luckily I learnt from VSC......else my wife could have been accruing her "Out-of-status" days. This was a new internal memo circulated in VSC during late summer.

 

[dyingforgc]

If 485 is denied, EAD / AP is dead (Totally). Filing MTR doesn't buy you any time for EAD/ AP. Along with your MTR, you need to apply for EAD / AP. Even if your 485 is re-opned, your EAD / AP will NOT be re-opned. This is a first hand information from an Immigration officer @ VSC.

In My case, when my 485 was re-opened my EAD was also re-opened & approved. My wife's EAD never got re-opened / approved. When we called VSC, we're told that 485 benefitting applications will not be re-opened. We quoted that, primary got re-opened why not the spouse application. They were surpirsed about it and told us, it was a mistake. Tehnically speaking USCIS should not have re-opened the primary EAD either. She also added that, if you still want us to send the file for re-opening spouse EAD with the quote that "Primary is approved", most probably they may very well deny the primary the EAD and ask us to re-apply. We just thanked her for letting us know and told her that we will apply new EAD for spouse and requested not to do anything.

Bottom line, if any attorney told you that if MTR is applied for 485, it validates EAD / AP until a new decision is made is WRONG. Even my attorney told me the same. Luckily I learnt from VSC......else my wife could have been accruing her "Out-of-status" days. This was a new internal memo circulated in VSC during late summer.

This is very very interesting. If I-485 decision is pending why can't you use EAD until final decision is made. good to know.

 

[tammy2]

Could you please help me to come out of this situation.

Myseld and my wife's visa is till Sep' 06 from company A.
After that I applied H1 thru CST and I am on payroll form Aug' 04 woth it.
I applied GC using sub. labor from CST in Dec' 04.
Got 140 approved and wife got her EAD and AP in Mar and Apr.
She is now working on her EAD and last week I got the denial letter for my 131 stating that it is denied because my 485 denied (I did not receive it till now). So, I am expecting that my wife and I will get the denail letters soon.
Now I made her stop working and I applied for new H1 thru another company C recently.
How should I make her to get back to H4 status?
Is going out of the country the only solution?
If so, Can she come back with the stamping made with Company A?
How many days can she be in US after her 485 denial, when should I make her to fly?
If i send her out of country (planning to send her to India), When she come back to US, at the POE, can she show my new H1 (from company C) and take the new I-94 to come back to H4 status or is there any other way?
Please help me in showing the possibilities of her comming back to H4 status?

Needs to go out of US and come back. You/ She can use old stamping if it is valid. Do it ASAP so that she will not incur out of status presence.

 

[Kishore_l]

Kishore, there is a difference between motion to reopen being accepted (they agree to re-look at your case) and where you have overcome your reason for denial.

If your ead/ap was approved in the past but your 485 was denied. Once you have overcome the reason for the denial then ead/ap become alive again.

You call the 1800 number and speak to ten different VSC officers they will tell you a different thing.

I haven't seen USCIS/Ombudsmen do this but they did do it for the IRS. Note: IRS call centers are much more knowledgeable then uscis people who answer the phones.

GAO stated that IRS was wrong 30% of the time when someone called and asked for information or a technical question.

I totally agree with you. But what VSC agent told me was applied in 2 other person whom I know personally. As per the agent (which also happened in my case.....) is

1. When they deny your 140/485 application (Not just 485...), Primary & all all derivative 485 & supporting application are denied, case is closed & sent to the STORAGE.
2. When you file for 140/485 MTR along with new EAD/AP, primary 140/485 file is brought back and reviewed.
3. If the preliminary review shows that, if your 140 is "Approvable",
A). then your 140/485 is re-opened & sent to the same adjudicator for
review again.
B). your EAD/ AP will be approved
4. Now they can approve your 140 or they can still deny it & send back.
5. If its approved, then spouse 485 is retrieved from storage (within 30 days) and re-opned
6. If 140 is denied. Your 485 will also be denied & sent back to storage.
7. At any given stage, your other denied applications (which was sent to storage) will never be retrieved. I was told that, this one of the steps to reduce backlog / time in processing the application.

I agree with UN, you will hear 10 different things from every agent (Not NCS....even with VSC agents)....but if someone is knowledgable.......they may apply the law as they did in my spouse case .........then you may not be lucky to get your EAD/ AP re-validated.

USCIS has even sent a letter, that EAD/AP decision is FINAL and not appelable and we need to file for new application.

 

[dyingforgc]

one is not subject to the quota if they were counted against it once in the last six years and they were not out of the country for more then one year.

UN:- My spouse is working using EAD. I was planning to convert her back to H4 once we get denial letters. Now this makes me confused when you said not subjecet to quota. Can I convert my sopose into H1-B (before EAD she was on H-4). She falls under schedule A category. please advise. I thought since she was on H4 before, in order to acquired new H1, she is subject to quota. let me know.

 

[dyingforgc]

Can H4 be renewed in canada/mexico?

Any experience of stamping H4 visa in canada/mexico US consulates ALONG with H1 stamping for the primary person? please share.

 

[dyingforgc]

If you were on H-1 and were counted against the cap once in the last six years and you have not been out of the country for more then one year then you are not subject to the cap.

Your wife is not in the above situation. She would be subject to the Cap.

If she is in Schedule A, why don't you do a 140/485 through her. Visa dates are current for her.

yes. I am in the process of applying for I-140 for her but not I-485 as we don't have visa screen certificate yet. I heard few cases where USCIS rejected I-485 without issuing an RFE for visa screen certificate. Thanks.

 

[pghan]

If you were on H-1 and were counted against the cap once in the last six years and you have not been out of the country for more then one year then you are not subject to the cap.

Your wife is not in the above situation. She would be subject to the Cap.

If she is in Schedule A, why don't you do a 140/485 through her. Visa dates are current for her.

Same is my Situation.My Wife worked on EAD till now,she got denial letter on saturday and i made her stop working from today.
Can i file a new H1 for her.
Does she need to go out of the country to get her H4 status back (before EAD ,she was on H4).

 

[hiUS]

Needs to go out of US and come back. You/ She can use old stamping if it is valid. Do it ASAP so that she will not incur out of status presence.

Is it that going out of country immediatly is enough or she even needs to comeback immediatly?
As Dyingforce said, I applied for my H1 (transfer), not to my wife's. I am just planning to get back her to H4.
Do i need to ask my previous employer whether my old stamping is still valid or not? Please advice...

 

[pghan]

please help me out

If you were on H-1 and were counted against the cap once in the last six years and you have not been out of the country for more then one year then you are not subject to the cap.

Your wife is not in the above situation. She would be subject to the Cap.

If she is in Schedule A, why don't you do a 140/485 through her. Visa dates are current for her.

What is this Schedule A,
Pls let me know

 

[dyingforgc]

Is it that going out of country immediatly is enough or she even needs to comeback immediatly?
As Dyingforce said, I applied for my H1 (transfer), not to my wife's. I am just planning to get back her to H4.
Do i need to ask my previous employer whether my old stamping is still valid or not? Please advice...

describe your situation in detail so that people can help. were you on H1-B status with CST or you are one of the victims for whom he never applied for H1? If you were on H1-B with CST , you can apply for H1 transfer and what's the situation with your wife's H4? just trying to understand your situation in detail.

why to ask old employer abot stamping. Did I miss something you mentioned before?

 

[pghan]

Thankyou!

nurses, physical therapists.

Everyone needs to do a little research. The easy way is to just ask questions but you need to do a little homework.

UN,
Thankyou for your reply,
I had already read your earlier posting.
Trully speeking ,i came to know about this denials just a week before.
It might look foolish of me,but its true.
From that day i am going through this forum and getting some information about this immigration policies.
Any way thanks for the replys

 

[hiUS]

describe your situation in detail so that people can help. were you on H1-B status with CST or you are one of the victims for whom he never applied for H1? If you were on H1-B with CST , you can apply for H1 transfer and what's the situation with your wife's H4? just trying to understand your situation in detail.

why to ask old employer abot stamping. Did I miss something you mentioned before?

I have my H1 with CST and now i am in process of transfering it. Tammy2 has said that if your previous stamping is valid, so, I am wondering that how do i know, whether I need to contact my previous employer (before joining CST) about the validity of the stamping. Stamping from the previous employer is till Sep' 06.

My wife worked on EAD and now she stopped working (Till now i did not get the denial letter). But I got the denial for 131 saying that 131 is denied because my 485 is denied. So I understand that it is denied and my wife's will be in pipeline.

I contacted the lawyer and he said that she needs to leave the country and come back to get on to the H4. Please do share for more info about this process.

 

[dyingforgc]

I have my H1 with CST and now i am in process of transfering it. Tammy2 has said that if your previous stamping is valid, so, I am wondering that how do i know, whether I need to contact my previous employer (before joining CST) about the validity of the stamping. Stamping from the previous employer is till Sep' 06.

My wife worked on EAD and now she stopped working (Till now i did not get the denial letter). But I got the denial for 131 saying that 131 is denied because my 485 is denied. So I understand that it is denied and my wife's will be in pipeline.

I contacted the lawyer and he said that she needs to leave the country and come back to get on to the H4. Please do share for more info about this process.

Has your employer cancelled your visa with him? You never used EAD so for you its not a matter of getting back to H1 from EAD. Stamping is irrelevant in your case.

you said you already have applied for H1-B transfer so you are completely okay with status. For your wife, she needs to leave US and come back with valid stamp and I-94 for her H4 (based on your H1). If your H1 is cancelled by previous employer, wait till new transfer application is approved before your wife leaves country for H4 stamping. send her with your approved new notice of action.

If your previous H1 is valid you always can go back to past employer. Remember at a time you can keep multiple H1s but you can work ONLY for one sponsor. If previous H1 is valid, you can just go back to him.

 

[hiUS]

Has your employer cancelled your visa with him? You never used EAD so for you its not a matter of getting back to H1 from EAD. Stamping is irrelevant in your case.

you said you already have applied for H1-B transfer so you are completely okay with status. For your wife, she needs to leave US and come back with valid stamp and I-94 for her H4 (based on your H1). If your H1 is cancelled by previous employer, wait till new transfer application is approved before your wife leaves country for H4 stamping. send her with your approved new notice of action.

If your previous H1 is valid you always can go back to past employer. Remember at a time you can keep multiple H1s but you can work ONLY for one sponsor. If previous H1 is valid, you can just go back to him.

Thanks for your help. Yeah, as you said i did not use the EAD, I am on H1 only with CST. only my wife used it. Infact I did not get my EAD, only 140 approved, anyways it is denied now.
Do you have any idea like, for how many days she can be in US after her 485 denial. I think she will be out of status as soon asshe gets the denial letter as she used her EAD.
I am not going to my previous employer, i have applied tthru differnet company for my transfer.
So, if she goes to India next week, can i send my new H1 to her by post and make her to show it in the POE for new I-94 when she comes back or she needs to be back on the old visa which is till Sep' 06 and apply for H4 with my new H1.
Do i need to check the validity of the stamping which is till Sep' 06 with my previous employer ( before joining CST H1)? In the sense will the stamping on her visa gets invalid if my porevious employer cancels the H1?

 

[cyb_victim]

too late to wake up :[

I am another victim of this comp - received rejections on all my applications. They are now with holding my pay stubs for last 2 months denying me the option to have a clean H1 transfer. 'Good samaritan' of this thread already suggested that i can still apply for a transfer - only catch is that i wont be getting a new i94 with out leaving the country. Is there anyone else in this boat?