Please help an old timer

PaulK

Registered Users (C)
I got a phone call today from my lawer.He received an RFE for my wife's(dependantd) case.INS is claiming that she was out of statust between her F-1 visa and her H-4.
Now she completed her stady on January 11 2002.We applied for her H-4 on 07/02/2002.However the aproval notice say that the visa was valid from September 17 2002(the date the visa was aproced.The receipt date is 07/09.The question is Was she out of status for more than 180 days?
I thought that the Notice date is the date that matters.Apperantly INS don't think so.
All this happened on the same day I received my physical green card.:(:(

Please let me know what you think.

Here is my info
I-485 ND 12/05/2002
EB3
AD 02/28/2005
Card Received - 09/06/2005
 
desperation

Well,

Lawyer is sending the papers back to INS today.They have issued a Notice of Intend to deny.Which means they pritty much made up their mind.
It is really sad how after 5 year in the states,having a house,2 cars,paying taxes evry year,some officer can get up one morning pissed off at his wife,hangover or whatever reason and change your life upside down.

My wife is pregnant and she is taking all this bullshit very emotional.I'm scared that it will affect the baby.
It will take over a year for a CP .It means we either have to separate and ne not having the oppertunity to help her with her pregnancy,be there when the baby is born(because I have to pay the bills and the taxes here in the US),or we just sell evrything and go back and never,ever think about USA anymore.


I don't know what to do.

What you guys would do if you were me?
 
so sorry to hear that

PaulK said:
I got a phone call today from my lawer.He received an RFE for my wife's(dependantd) case.INS is claiming that she was out of statust between her F-1 visa and her H-4.
Now she completed her stady on January 11 2002.We applied for her H-4 on 07/02/2002.However the aproval notice say that the visa was valid from September 17 2002(the date the visa was aproced.The receipt date is 07/09.The question is Was she out of status for more than 180 days?
I thought that the Notice date is the date that matters.Apperantly INS don't think so.
All this happened on the same day I received my physical green card.:(:(

Please let me know what you think.

Here is my info
I-485 ND 12/05/2002
EB3
AD 02/28/2005
Card Received - 09/06/2005
so sorry to hear that. But does your attorney think you are in trouble? She completed her study in 1/11/02, did she apply OPT (EAD for 1-year) prior to that? If so, her status is good for another year, then no issue with the concern of out-of-status.

Also, even if 1/11/02 were the last day of her F1+OPT, then you filed H4 within 180 days, then her out-of-status stay is <180 days, which can be forgiven under certain conditions (couldn't remember, but may apply to you).

Good luck to you!
 
You have my deep sympathy Paul. I hope your situation gets resolved. I really think you are in need of prodessional advice here. I would call a few lawyers and try to get a second opinion. Sometimes lawyers will give you good ideas during the initial free consultation.

Best of luck man!
 
usrfdluj said:
so sorry to hear that. But does your attorney think you are in trouble? She completed her study in 1/11/02, did she apply OPT (EAD for 1-year) prior to that? If so, her status is good for another year, then no issue with the concern of out-of-status.

Also, even if 1/11/02 were the last day of her F1+OPT, then you filed H4 within 180 days, then her out-of-status stay is <180 days, which can be forgiven under certain conditions (couldn't remember, but may apply to you).

Good luck to you!
Yes -- I was thinking about the OPT too.

But am not sure if you have to be working somewhere to maintain status or would just getting the OPT suffice.

I *think* you don't have to work -- just having OPT covers your status issue.

PaulK Please check about the OPT (if u haven't already) -- Good luck and hope it turns out OK.
BTW, you don't have to leave right away -- you can file a MOTR and stay on till that's ruled upon. Definitely consult w/ a lawyer.
 
Thank you for your input.

To answer on some of your questions.
No,We didn't apply for OPT.
I found a few memos that almost clearly state that my wife was in "period of stay authorized by Attorney General" but she WAS NOT ina period of "authorized status"
If you file COS asfter D/S on your F1 visa expired(studies are completed) you have 60 days that keeps in "authorized status".It is considered "out of status"
till the aproval date of the COS(not the filing date- the filing date will give you "period of stay authorized by Attorney General.

I don't think we have a case and the I-485 will be denied.
What a nightmare.
My wife's doctor is strongly aginst her flying due to her pregnancy.I know that doesn't mean anything to INS but do you guys think that an emotional letter will help.

Thank you agian for your support
 
it may not as bad as you think

It may not as bad as you think. Believe me, if you hire a good lawyer, he/she can find ways for you and your wife stay. Remember what we learnt from "OJ Simpson" case.

First, I don't think your wife has been out-of-stauts more than 180 days, therefore, no 3/10 year bar applies to her!

Even if she were out of status for > 180 days, that does not mean there is no hope at all. ACT 245(i) puts an exemption to those who is subject to 3/10 year bar (overstay >180) by 1/14/1998 then extended to 4/30/01 by 245 LIFE, so that they can still pursue GC. You never know there may be another extension in horizon.

Second, since you are now a GC holder, why not file I-130 family-based application for her? Even if you enventually face the same problem for your wife, you will buy yourself a few years, and some new laws may come up just hand over the GC to your wife...

Third, ask your attorney whether you can file a MTR, delay as much as possible.

FOrth, citing your wife's health condition and doctor's advise, ask congressman and senator to appeal to CIS, it works better and faster than you write the letter yourself!

Finally, be optimistic, and tell your wife everything is in control. Don't let her overwhelmed by the stress, pregnant women cannot take much stress while keep healthy...I and my wife had been there...

=================================
Finally, a little research I found from http://www.mnllp.com/EEpublicchargeinfo.html#Unlawful Presence Time Period

Aliens with properly filed applications for adjustment of status under INA S. 245.
Examples of properly filed applications for adjustment of status:
The status of an alien who was inspected and admitted or paroled into the United States may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if:

1. the alien makes an application for such adjustment under 245, and

2. the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and

3. an immigrant visa is immediately available to him at the time his application is filed,

AND
A) Immediate Relatives
Immediate relatives as defined in section 201(b) or special immigrants described in section 101(a)(27) (H), (I), (J), or (K) of the Act who have at any time engaged in unauthorized employment or otherwise violated the terms of a nonimmigrant status continue to be eligible to adjust status under section 245(a) of the Act because of the explicit language to this effect in section 245(c)(2) of the Act.
OR
B) Employment Based Immigrants
An alien who is eligible to receive an immigrant visa under paragraph (1), (2), or (3) of section 203(b) (or, in the case of an alien who is an immigrant described in section 101(a)(27)(C), under section 203(b)(4)) may continue to adjust status pursuant to subsection (a) if:
i) the alien, on the date of filing an application for adjustment of status, is present in the United States pursuant to a lawful admission; and
ii) the alien, subsequent to such lawful admission has not, for an aggregate period exceeding 180 days --

a) failed to maintain, continuously, a lawful status; or
b) engaged in unauthorized employment; or
c) otherwise violated the terms and conditions of the alien's admission.
 
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Even criminals can get away in this country with help of best lawyers
then why not the law abiding immigrants find ways to the problem?

System has many holes if you can find it... No Need to pack and leave so soon
fight back to the system. Hire the best lawyer such as Shusterman or Khanna who is well known
and file the MOTR. At the worst you can stay untill the baby is born meanwhile you can apply for residents re-entry permit which is good for 2 years, you can stay with your wife till her CP is complete.Just make sure there is no problem with the CP

Remember, if there is a will there is a way... and US is not the ONLY place in the world

Good Luck !
 
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1. Whatever the case may be you should immediately go ahead and send a response to the RFE stating whatever the best reason that you can to indicate why you don't think she was out of status (as you said "Period of stay Authorized by AG"). It will take some time (may be a couple of months) for USCIS to either approve or deny your case. By this time your child might have been born. So one cause of worry would be taken care of.

2. If USCIS denies the case then immediately file for a MTR (Motion to Reopen) this will buy you some more time.

3. With MTR, parallely file for Follow to join (Sponsor your spouse's GC on your behalf) as you already have your GC (I think its a counselor processing). There are several links on this forum that can help you with this issue.

I know its a tough situation, the very thought of this shakes me, but do the best you can and keep posting on this forum.

Thanks
 
PaulK,

I am very sorry to hear about your and your wifes ordeal. I do not have any advice on the legal front but would like to add my thoughts on the emotional and personal aspect. First, whatever happens, DO NOT LEAVE THE COUNTRY until and unless you really really have to. Its much much better to stay and fight on from within. Keep reading and researching yourself, and HIRE A GOOD IMMIGRATION LAWYER, if you havn't already or are not satisfied with the capabilities of your current one. As days go by, you will find there may be a light at the end of the tunnel, do not give up so fast man. Bottomline is stay positive, and fight this tooth and nail. Do not be negative. Comments like 'I don't think we have a case and the I-485 will be denied.' should not be in your mind. As someone said, if you have a good lawyer you may even get away with murder.

On a personal level, try to act normal and do not allow your wife to read your tension. I don't know how good an actor you are, but this is the time to put on your acting hat and try to show to her that things will work out. Try to feed her the positives, and filter out the negative, atleast till the baby is born.

All the best to you man.
 
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Sertra,

Good to hear from an old-timer like yourself.Thanks for the advise.I really want to feel better but as you see One bad-mooded IIO can change everything.

I just talked to another attorney. He is considered one of the top-shots here in Chicago. I was surprised to hear that he would argue the same way as my current attorney.
The “Cook” Memo clearly states that “COS application filed after the alien’s authorized period of admission has expired does not have the effect of prolonging the alien’s status”
In other words. My wife DS expired on January 14 2001.She had 60 days by law(retaining her status) to find another school. That gets the count to March 15 2001.After we count 180 days (section 245) I comes down to September 11,2001.Her H4 was filed on July 9 2001,however it was approved on September 18,2002.They are questioning the 7 days in between.
They are saying that my wife was in authorized period of stay, but she wasn’t in “lawful status”, that’s why they should consider the approval date and not the notice day.
So that’s where I’m .My lawyer is sending the argument today. Probably I’ll see the denial in a month(maybe less ).Then I’m going to hire the Chicago lawyer to file MTR.
The Lawyer also advised me that it is not a very good idea getting a senator involved.
 
I came across this on the net.Maybe I have file a lawsuit after the denial.

What do you guys think?



Type of Case: Lawsuit Against Department of Homeland Security and others

Comments:
Our client�s derivative-based Adjustment of Status (AOS) application was denied. USCIS stated in its denial that the applicant had been out of lawful nonimmigrant status for more than an aggregate amount of 180 days. We filed a lawsuit against the Department of Homeland Security (DHS) and others (Defendants) alleging, inter alia, that our client (the Plaintiff) would have been out of lawful nonimmigrant status for less than an aggregate amount of 180 days had the Defendants adjudicated Plaintiff�s earlier H-1 petition as of the filing date. In addition, Defendants failed to adjudicate a nonimmigrant visa extension that the Plaintiff filed prior to the H-1 petition. In our complaint, we sought redress under the Administrative Procedure and Mandamus Acts for DHS�s failure to approve Plaintiff�s H-1 application nunc-pro-tunc. In addition, we claimed that the Defendants� denial of Plaintiff�s AOS application was arbitrary, capricious, and unjust.



Status: The Defendants settled before submitting an answer to the complaint. Accordingly, Plaintiff�s AOS was approved.
 
There is still no news on my wife's case. We sent our respond to the Notice of Intend to Deny 2 weeks ago. No response so far.
Here is what my lawyer suggests:

" If the application is denied(I-485), and if the 180 days of unlawful presence starts accumulating, and if the visa numbers remain retrogressed for third preference, then I recommend the following:

--Have your wife apply for political asylum. She should not make any false statements, so of course she will be denied, unless she has special facts to her background that I'm not aware of. When denied she will be placed in removal proceedings. In removal, she asks the immigration judge for a voluntary departure. She then leaves the USA voluntarily, and applies for the immigrant visa in Sofia as soon as possible. The reason for this bizzare procedure is that if someone leaves the USA voluntarily after being put in removal proceedings, there is NO 3 YEAR BAR. So your wife could stay in the United States for 364 days following the denial of the adjustment. Then she could remain another 120 days during the voluntary departure period. So, without ever having to prove extreme hardship, we could drag out your wife's stay in this country for anywhere between 1 year and 3 months to 1 year and 4 months from the time that the adjustment application is denied, provided that we time the process correctly"


What do you guys think.Should I go this way?
 
Good luck!

Brilliant! what do you have to lose if you go this way? You can have the baby in a year's time. After that, hardship to an American citizen may be an additional legal leverage for your wife.
 
Hardship to a US citizen child is no longer a leverage but what your lawyer states is a god idea. Talk to another lawyer just to make sure that what is being suggested is a good idea. The reason is filiing a frivolous application can have some consequences and it is better to have opinion from other lawyer so that yo do not land in some more trouble. I can only think of shusterman and khanna.
 
Just to make my life misarable

Here we go guys.
My wife’s AOS of denied on Feb 25th 2006.If you read my previous post you will find my complete story. I’ll try to summarize it for those of you who don’t have time to read the whole thing.
I was granted green card on Feb 28 2005(EB3). My priority date is May 2 2002.My wife’s case didn’t get adjudicated till August the same year. We received NOID sometime in late August claiming that my wife has been out of status for 183 days.
She had F1 visa and she completed her studies in February 2002.We filed COS for H4 visa in July. She was granted H4 visa in September. She has been out of status between February and September (183 days). We argued that we applied for COS before the 180 days expired and INS failed to adjudicate the case in a timely manner.
They disagreed and we received the denial today.

To make things worst. My wife is 8 months pregnant and she is taking it really emotionally.(I wouldn’t tell her before the baby was born but my lawer accidently left her a message thinking that he was leaving me message).

Anyway ,to make things even worst ,there are no visa available (retrogressed category) so we can’t even do consular processing.

Please fill free to leave any comments. Maybe tomorrow I’ll let you know of what I’m planning to do.
I’m thinking about a few things. I’d read the statute and find out if H1-B for her is an option.
 
Do everything you can to have junior on US soil.

Then at least he wont whine like papa.

PaulK said:
Here we go guys.
My wife’s AOS of denied on Feb 25th 2006.If you read my previous post you will find my complete story. I’ll try to summarize it for those of you who don’t have time to read the whole thing.
I was granted green card on Feb 28 2005(EB3). My priority date is May 2 2002.My wife’s case didn’t get adjudicated till August the same year. We received NOID sometime in late August claiming that my wife has been out of status for 183 days.
She had F1 visa and she completed her studies in February 2002.We filed COS for H4 visa in July. She was granted H4 visa in September. She has been out of status between February and September (183 days). We argued that we applied for COS before the 180 days expired and INS failed to adjudicate the case in a timely manner.
They disagreed and we received the denial today.

To make things worst. My wife is 8 months pregnant and she is taking it really emotionally.(I wouldn’t tell her before the baby was born but my lawer accidently left her a message thinking that he was leaving me message).

Anyway ,to make things even worst ,there are no visa available (retrogressed category) so we can’t even do consular processing.

Please fill free to leave any comments. Maybe tomorrow I’ll let you know of what I’m planning to do.
I’m thinking about a few things. I’d read the statute and find out if H1-B for her is an option.
 
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