Out of Status, I-94 questions for 485 processing

H

Honeyarjun

Registered Users (C)
I am really sorry for my long winded post but please do read it. I would appreciate any help.

History

I came to US in sep 2003 with a H4 visa valid upto July 2004. Then when my husband extended his H1 , I also got my H4 extension upto July 2007 and went to Canada and got the new visa stamped in my passport. After that I got H1 through a consulting firm in Dec 2004. The consultancy couldnt get me a project for 6 months and I was so ignorant regarding the immigration rules that time. One day I came across this information that if you stay in H1 without pay then you will become 'out of status'. I panicked and spoke to my husband's company lawyer and she advised me to convert to H4 asap and we filed I-539 and changed my status to H4.

Today my husband's company lawyer is filing our 140 (husband's) and 485 applications. I have a few questions regarding 485 processing. I understand that we can be out of status upto 180 days when we file for 485 (according to 245(k)). But I think I was out of status for 185 days (if the days are calculated from the H1 approval to H4 receipt date) or 198 days (if the days are calculated from the H1 approval to H4 approval date). I am not eligible for 245(i) as my husband's PD is June 2001 and I was not physically present in US in Dec 2000.

Questions

1. I understand that I was out of status for more than 180 days , how is it going to affect my 485 processing. Will it be denied ? or will I get RFE asking me to prove my status during that period? in that case what should I reply for that RFE ??

2. I am planning to go to my country next month. I still have a valid H4 visa stamped in my passport upto 2007 with valid I-94. Do I have to get the new H4 I got after the H1-H4 conversion stamped in my passport to enter into US?. I enquired the immigration office and sent an email to the US embassy in india and they replied me that I can still use the old H4 visa (which is valid upto 2007) stamped in my passport to come back to US. Is that okay ? what if at the POE , the system flag me out of status for more than 180 days. Will I be banned for 3 years as a consequence for this out of status condition ? Will be denied entering US at the POE?

3. Also while returing back the I-94 to the airline, I think I have to submit all the I-94's I have right now. While coming back from canada they didnt give that white I-94 paper, instead the immigration officer tore the I-94 from my 797 and stamped it to my passport. so now I have this I-94 and also the one from the new H4 797 paper but I do not have the I-94 frm the H1 paper which is with my consultancy. Will it cause any problem if I do not return that I-94 from my H1 paper?

4. All my I-94 numbers are the same but my husband's latest I-94 number stamped in his passport is different from the I-94 number came with his H1 paper. (He traveled 3-4 times out of the country after getting his H1 extension in sep 2004). Will this change in I-94 # cause a problem in his GC processing ? Also which number we got to use to fill the 485 form, one in H1 paper or the one in his passport now?. We used the latest number he has in his passport. Is that okay ??

I would greatly appreciate any help regarding my questions. I am really worried about my 'out of status' condition. My husband doesnt bother about his GC processing and he says his lawyer would take care if there is any problem. He also says "if that 'out of status' was a problem , USCIS would have raised an RFE or denied my H4 application (latest H4) itself. Since they accepted my H4 petition and approved it, I am in a valid status now and it is not going to affect my 485 processing". But I think that H4 was based on his legal H1 status and thats why it was not denied and USCIS will start scrutinizing the status problems only in the 485 stage. Am I right ?
 
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There is nothing to panic. You were just out of status and not illigal presence. Get the I-94 from the company and give it back. You will not have any problem for travelling and comming back.

Only problem will if they generate RFE for your W2. That is only for six months.
 
tammy2 said:
You were just out of status and not illigal presence.
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So what? If she was out of status for >180 days she cannot claim 245k relief, and if USCIS finds out then the case will be denied and she must use CP. This is one of those cases where one would need 245i relief (if available) despite not being subject to the re-entry bars.

I would present the latest H-4 I-94 when filing the I-485, and say nothing about being out of status, and let USCIS figure it out on their own. Generally speaking they do not RFE dependents, so let's see what happens.
 
245(i)

It affects only if u were here before 2001. It has been removed, 245(k) might still work...

out of status = Illegal; regardless of 180 days or not, so let us not try to spread the wrong message here.
 
Thanks tammy2 for your comforting words and I understand your post was with good intention so as not to panic me more. Also I understand you assumed dependent RFE's are not that common (from your pm). Thanks for your reply.

aaifor , I myself know I am in trouble and I am not qualified for 245(i) which I have explained in my post. But definitely I know for sure I didnt do anything illegal. If only I had stayed in US with expired visa or expired I-94 then I would be considered in illegal status. But out of status doesnt equal to Illegal JMHO (Just in my humble opinion).

As TheRealCanadian said, I am going to file my 485 and wait with hope that I would not get any RFE. If I get the RFE, then what should I do ? I will ask my lawyer about that. But people here have more knowledge and they might have seen similar situation. I would greatly appreciate if someone can answer all my questions(including my travel to my country at this time and my I-94 questions) and suggest me what to do legally to come out of this situation.
 
Hey, Honeyarjun

Honeyarjun said:
Thanks tammy2 for your comforting words and I understand your post was with good intention so as not to panic me more. Also I understand you assumed dependent RFE's are not that common (from your pm). Thanks for your reply.

aaifor , I myself know I am in trouble and I am not qualified for 245(i) which I have explained in my post. But definitely I know for sure I didnt do anything illegal. If only I had stayed in US with expired visa or expired I-94 then I would be considered in illegal status. But out of status doesnt equal to Illegal JMHO (Just in my humble opinion).

As TheRealCanadian said, I am going to file my 485 and wait with hope that I would not get any RFE. If I get the RFE, then what should I do ? I will ask my lawyer about that. But people here have more knowledge and they might have seen similar situation. I would greatly appreciate if someone can answer all my questions(including my travel to my country at this time and my I-94 questions) and suggest me what to do legally to come out of this situation.
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I think that if you go to India, get new stamp in passport for H4, and re-enter US, it would be as if you newly has been " lawfuly admitted". All past history stays behind forgotten and when you apply for 485, only period between last lawful admition and 485 application should not be without broken status.
Next; when you re-enter there is no way they would have in the system that you had not worked, you just show your approval of H1 in case they ask. the other thing , because USCIS changed your status form H1 to H4, they already recognized that you had been maintaining your previous status continuously. This is the basic requirement for COS to be granted.
 
akatu said:
I think that if you go to India, get new stamp in passport for H4, and re-enter US, it would be as if you newly has been " lawfuly admitted". All past history stays behind forgotten and when you apply for 485, only period between last lawful admition and 485 application should not be without broken status.
Next; when you re-enter there is no way they would have in the system that you had not worked, you just show your approval of H1 in case they ask. the other thing , because USCIS changed your status form H1 to H4, they already recognized that you had been maintaining your previous status continuously. This is the basic requirement for COS to be granted.
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Do'nt even need to get new stamping. If goes out of US and come back it should be fine.
 
TheRealCanadian said:
So what? If she was out of status for >180 days she cannot claim 245k relief, and if USCIS finds out then the case will be denied and she must use CP. This is one of those cases where one would need 245i relief (if available) despite not being subject to the re-entry bars.

I would present the latest H-4 I-94 when filing the I-485, and say nothing about being out of status, and let USCIS figure it out on their own. Generally speaking they do not RFE dependents, so let's see what happens.
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What happens if she apply her I-485 after re-entering from Canada or Mexico within this week?
 
i think she would have to stay in Canada/Mexico for more than 30 days but she can definitely use her unexpired H4 stamp to enter back but I believe if she goes to other country and comes back maybe even in a few days that will put her back to H4 status with the unexpired H4 stamp on her passport and then she can file her I485 saying that she is on H4 status


Correct me if I am wrong on the above gurus/experts
 
Jaggy , I have already converted back to H4 (COS using 539) and my lawyer told me I am in H4 and they are filing the 485 with my status being H4 attaching all the 797 copies - old H4, H1 and the new H4. I guess they might have filed the 485 y'day or they are going to file it today (we had to do it fast as we are affected by retrogression). My lawyer said it is not possible for me to travel outside US at this point till I receive the 485 receipt. I will be traveling only next month.

I have read in the forum what akatu mentioned, USCIS would check only from the last lawful entry. If I file 485 now and travel next month wont that be considered from my next entry (God knows when they are going to start processing my 485 application). Or the USCIS would check from my previous entry into US from Canada since by the time I am submitting this 485 form that is my last lawful entry into US ? My question is ...According USCIS what is considered as last lawful entry ? Entry by the time you apply for 485 or entry even after filing 485 ??
 
Honeyarjun said:
Jaggy , I have already converted back to H4 (COS using 539) and my lawyer told me I am in H4 and they are filing the 485 with my status being H4 attaching all the 797 copies - old H4, H1 and the new H4. I guess they might have filed the 485 y'day or they are going to file it today (we had to do it fast as we are affected by retrogression). My lawyer said it is not possible for me to travel outside US at this point till I receive the 485 receipt. I will be traveling only next month.

I have read in the forum what akatu mentioned, USCIS would check only from the last lawful entry. If I file 485 now and travel next month wont that be considered from my next entry (God knows when they are going to start processing my 485 application). Or the USCIS would check from my previous entry into US from Canada since by the time I am submitting this 485 form that is my last lawful entry into US ? My question is ...According USCIS what is considered as last lawful entry ? Entry by the time you apply for 485 or entry even after filing 485 ??
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Entry by the time you apply for 485 is considered. Just Go to Canada. Even you come back within an hour. You can put that as last entry. Hopefully the problems will be resolved.
 
Tammy2 ~ I wont be able to go to Canada right now as I dont have canadian visa. Also I guess my lawyer would have filed the 485 application yesterday. My husband has sent her an email asking for the latest update but hasnt got a reply so far. Since she is my husband's company lawyer and they are handling so many cases at this crucial time , they are not properly responding to us. By the way my husband's company pay for his GC processing , so I guess the lawyer is not so keen in answering our questions at this time.

PaulK ~ I am so sorry to hear about your situation right now. Thanks for letting me know abt your case and the actions you are planning to take. Even though my situation sounds similar to your wife's , I think mine is a bit different. I never had any expired visa or I-94. So if USCIS look into my case they wont be able to find I was out of status unless they go further into my case looking for pay stubs and tax return. I guess I will fall into this category - failed to maintain, continuously a lawful status, but I am not sure. I will have a detailed talk with my lawyer when she is available :rolleyes:

PaulK, I sincerly hope and pray your wife would get her approval soon/before oct 1st if you are affected by retro. Heres another thread which sounds similar to ours http://immigrationportal.com/showthread.php?t=138901 .I guess your wife's case might be very similar to this one. Take a look at this thread. Please do all you can to be with your wife at this stage. Fight your case on humanitarian grounds(if it is possible) with a good lawyer. Being in US is nothing compared to being with your family when it needs you.

I am really sorry for my frank opinion. But thats what me and my husband are planning to do, We will leave US if I get a ban on me. I will never stay even a single day away from my husband unless I really want to. Dont let USCIS with its stupid rules take away your family from you. I guess I just lost my composure a bit , I can truly understand what your wife might be feeling now as I think I am going to be in the same exact situation your wife is in now when my husband's 485 is going to be approved.

(ETA - edited to add) PaulK, I just reread your thread. I missed some points in your final post when I read it first time. I am glad to know that you finally got a way to be with your wife for the coming year and you can be with her when your child is born :) . I feel so happy that you finally got a way out . Please keep us updated .
 
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To Honeyarjun and PAULK

The analysis of lawers you mentioned on unlawful stay is all wrong and cannot be applied to yours particular cases, although USCIS thinks differently. It's worth to try to fight for these cases.

1. Cook's memo was issued in March 2003 and cannot be applied retrospectively.

2. In 2001 Pearson's memo was in effect and should have been respected at least for the case that has beeb adjudicated before Cook's memo was even puplished.

3. Accoding to that memo if COS granted the beginning of new status should roll back to the last date of previous status. No unlawful stay accrued.

4. Cook memo was issued as aguidance for E/S or COS, not for AOS.

In that respect view the prototype case inside this memo. COS was denied because of failure to file timely (while out of status) Then follows the phrase: of cause if COS is granted you are again in status

For both of you COS has been granted. Uncoditionaly. Thus Cook's memo is immaterial.
 
Akatu, thanks for showing some light to our case. I am not familiar with cook's memo or pearson's memo. I will search for those and look into it. So you are saying since COS has been given to us, we should not be questioned about those days we were out of status ? Is that Right??

My husband, who is very ignorant of the immigration rules, also thinks the same. He says my application for COS would have been denied if USCIS doubted my legal status by the time I applied for COS. Since they accepted my petition , I am in legal status now. This is just his opinion , let me wait it out and see what happens when USCIS process my 485 application.

Meanwhile can someone please answer my visa stamping and I-94 questions ?
 
Honeyarjun said:
He says my application for COS would have been denied if USCIS doubted my legal status by the time I applied for COS. Since they accepted my petition , I am in legal status now.
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That seems about right. So long as you have unbroken I-94s, USCIS probably won't suspect anything. The only thing that might get sticky is if they ask for your W-2s from the time you were in H-1B status, but as a dependent it's unlikely.

The only thing I'd do is not proactively submit tax returns or W-2s with the I-485.
 
Your husbund is right

Honeyarjun said:
Akatu, thanks for showing some light to our case. I am not familiar with cook's memo or pearson's memo. I will search for those and look into it. So you are saying since COS has been given to us, we should not be questioned about those days we were out of status ? Is that Right??

My husband, who is very ignorant of the immigration rules, also thinks the same. He says my application for COS would have been denied if USCIS doubted my legal status by the time I applied for COS. Since they accepted my petition , I am in legal status now. This is just his opinion , let me wait it out and see what happens when USCIS process my 485 application.

Meanwhile can someone please answer my visa stamping and I-94 questions ?
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If you want to read those memos look up at shusterman.com website.

USCIS might take a different look at this matter. Still you have to keep in mind that those folk are bunch of unhumane bureaucrats who barely can read, and may not understand the law as lawyers in the courts do. Thus cases winning in the court of law easily may be denied by USCIS.
 
Akatu,

Thank you for your input.
I read the Pierson Memo.
My understanding is that Change of Status applications become effective on the date of approval, and extension of status applications are approved retroactively. However, in any case, for retroactivity to occur the application must have been timely filed. The CIS would say that my wife's COS application was NOT timely filed.
 
Do not go by memos.

Memo are not Laws . They do not have legal binding. You cannot say per that memo I was in status.
 
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