PLEASE HELP received NOID due to Out of Status

S

spek

Registered Users (C)
Hi All,

History:
My first I-94: January 00 – August 01

My husband changed company A to Company B back in 2000 and we didn't file my H4 extension along with his H1 transfer/extension.
Again my husband changed Company B to Company C in December 2001 and applied for H1 transfer/extension. At that time only we came to know that we should apply separate extension for me and my I-94 expired on August 01 (already 4 months lapsed on I-94). So we immediately filed the I-539 to excuse the delay in filing. INS approved my extension from December 01 till November 04.

NOID:
Today I received NOID (Notice of Intent to Deny) due to Out-of-status from August 01 - December 01. My lawyer is confident that we will get approved and she is going to prepare detail document and going to reply to NOID next week but we are much worried.

So I greatly appreciate your responses and any kind of help/advise in this matter. Waiting for your help to lift my spirits/hopes

Thanks in advance.


My details:
EB2
I140 Details- Primany Applicant
ND...... 01/21/03
AP...... 01/16/04
No RFE


I485 Details- Primany Applicant
ND...... 01/21/03
FP1..... 02/15/2004
EAD1/EAD2, Ap1/Ap2 both Approved.
NO RFE

My I485 Details- Dependent
ND...... 01/21/03
FP1..... 02/15/2004
EAD1/EAD2, Ap1/Ap2 both Approved.
NOID received: 08/13/04
 
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Again it is 245(k) case. Since Aug-01 to Dec 01 is less then 180 days you will not have any problem. Ask attorney what he is going to answer.
 
Tammy,

Thanks for your reply. As my case I-539 had been approved by INS on December 01 for delay in filing H4 extension, doesn't it mean they reinstated my H4 from August 01 ?

Thanks again.
 
It looks like your Lawyer knows how to handle your situation which is really good and you should first talk to your lawyer and let the Forum know about the options he proposed and then people with good knowledge can suggest you accordingly.

I think this case is perfect for 245(K) and hopefully you should be fine.
 
Thanks needhelp1 for your help.

Here's are my further details:
I applied for my I-539 extension on December 2001 and the INS approval notice states the date as Feb 02 - Nov 04 as per my husband's H1-B transfer approval notice Feb 02 - Nov 04. INS mentioned in the NOID to provide further evidence from August 01 to Feb 02 as I have crossed 180 days( over 3-4 days).

My lawyer is telling that approval of I-539 means INS should reinstate my H4 irrelavent of the dates mentioned in the I-539 approval notice. She is going to reply to NOID next week enclosing all the filing details of I-539.

My I-539 Details:

Applied: Dec 01
Approved: Apr 02
Approval Dates: Feb 02 - Nov 04
Out of Status: Aug 01 - Dec 01 (4 months)
Out of Status according to NOID: Aug 01 - Feb 02 (appox 183 - 186 days)

Thanks,
SPEK
 
I am not 100 sure, but I am also of the impression that if INS has approved your H4 which you applied on Dec 01, then it should have reinstated your Out of Status period, but generally if INS think that your are Out of Status then in such a case, it will ask you to go to your home country for getting VISA stamped again and it will be clearly mentioned in the approval notice.

I am sorry to say this but INS will consider the period from Aug 01 to Feb 02 as H4 status will come in to effect on the day of approval of the petition but not on the day of filling the application. So your Lawyer will not be able to use 245(K) as it has crossed 180 days. So he/she should fight CIS using the above logic that since they have approved the H4, it is implied that your status has been reinstated. I sincerely wish you Good Luck and pray to God that you over come this hurdle in the difficult times of GC process.

Please note that I am not a Lawyer and I am Software Profession, so please take others immigration lawyers advice too.
 
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needhelp1 said:
I am not 100 sure, but I am also of the impression that if INS has approved your H4 which you applied on Dec 01, then it should have reinstated your Out of Status period, but generally if INS think that your are Out of Status then in such a case, it will ask you to go to your home country for getting VISA stamped again and it will be clearly mentioned in the approval notice.

I am sorry to say this but INS will consider the period from Aug 01 to Feb 02 as H4 status will come in to effect on the day of approval of the petition but not on the day of filling the application. So your Lawyer will not be able to use 245(K) as it has crossed 180 days. So he/she should fight CIS using the above logic that since they have approved the H4, it is implied that your status has been reinstated. I sincerely wish you Good Luck and pray to God that you over come this hurdle in the difficult times of GC process.

Please note that I am not a Lawyer and I am Software Profession, so please take others immigration lawyers advice too.
Click to expand...

Generally H-1 adjudications are on different standards than GC so that may be the reason for this notice. But again as someone pointed out that it should not be a problem. I wish you best of luck
 
I had the same issue by with primary applicant

I had the same issue by with primary applicant. If it is less than 180 days INS will not send Noid. Please ask your lawyer to mail or fax the copy the Noid to you. because when INS sends Noid they have to explain in which section you do not qualify and which section you qualify to adjust. So if the days of out of status is less than 180 days they should have adjusted your status and approved your application.

Thanks
 
Thanks needhelp1, karns and munna_mobile for your support and wishes.

Today sunday received email from lawyer stating that she replied to NOID yesterday (saturday) with the agrument that INS should have reinstated my H4 from August 01, irrelevent of the approval dates mentioned on I-539.

In the NOID notice from INS states that " I do not qualify for 245(K) as out of status was more than 180 days" and However you can apply for 245(i) with (a) 485 suppliment form and (b) $1000 penalty.

But my lawyer didn't say anything about 245(i) in her reply to NOID and I don't know how, but she is 100% confident that it's INS mistake not ours.

But I'm ready to pay $1000 if they approve my case. So my question is:
1. Is there any way we can again send second reply to NOID stating that we are ready to pay $1000 penalty and 485 suppliment form?
2. What will happen to my husband's 485 case(Primary applicant)?
3. Will they issue second NOID if they are not satisfied with the argument that my lawyer presented and with the option of 245(i)?
4. In the worst case scenario: I have already using EAD for my work, can I change to H4 which is valied till November 2004? (We are going to apply for my husband's 7th year extension real soon).

I will be waiting for replies and any kind of support from GURUS.

Thanks again and with no hope,
SPEK
:(
 
spek said:
Thanks needhelp1, karns and munna_mobile for your support and wishes.

1. Is there any way we can again send second reply to NOID stating that we are ready to pay $1000 penalty and 485 suppliment form?
2. What will happen to my husband's 485 case(Primary applicant)?
3. Will they issue second NOID if they are not satisfied with the argument that my lawyer presented and with the option of 245(i)?
4. In the worst case scenario: I have already using EAD for my work, can I change to H4 which is valied till November 2004? (We are going to apply for my husband's 7th year extension real soon).

I will be waiting for replies and any kind of support from GURUS.

Thanks again and with no hope,
SPEK
:(
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1. This is something you sould (have already) discuss with your lawer. Your lawyer repesents you and his/her reply is deemed as your reply.
2. No effect
3. NOID is followed by an approval or a denail, not another NOID.
4. Once you start using EAD, you are no longer on H4. And will have to apply for change of status from outside the US. You previous H4 is null and void. and in the worst case (denail) you would have to leave the country immidiately. (Search for discussions on EAD vs H1/H4 in this forum.
 
Hi adyav,

Thanks for your answers.

As I have mensioned before, my lawyer already replied to NOID yesterday and so I can't do anything now for my lawyer's reply.

In the worst case, if my 485 is denied,
1. Can I appeal to reopen my case and continue on my EAD until the decision for the appeal is made (I don't want to leave my husband and Daughter)?
2. Can I request INS to consider me in 245(i) at that time?

Will be waiting for replies.

SPEK :(
 
You can always fight a denial in a worst scenario but maynot be that bad.

They can still transfer your case for interview to give you another chance.

In the worst scenario if they deny you, you can do a motion to reopen, or appeal to AAO. Even beyond that, you can go to district court to challenge that. I don't think it may happen. But definitely you may consider to stay here to fight that. Leaving the country may be more risky for you since they mistakenly think you were 'out of status' for more than 180 days.
 
I am really surprised that your Lawyer has not even consulted with you whether you are willing to opt for 245(i) option and by looking at the confidence I am sure that she might have got approvals for this kind of case before.

Anyhow now that your NOID has been replied, all you can do is just PRAY GOD and hope for the best. I am sure that your case should not really be an issue as you can always reopen the case and go for 245(i) in the worst case scenario. Good luck!
 
spek said:
Hi adyav,

Thanks for your answers.

As I have mensioned before, my lawyer already replied to NOID yesterday and so I can't do anything now for my lawyer's reply.

In the worst case, if my 485 is denied,
1. Can I appeal to reopen my case and continue on my EAD until the decision for the appeal is made (I don't want to leave my husband and Daughter)?
2. Can I request INS to consider me in 245(i) at that time?

Will be waiting for replies.

SPEK :(
Click to expand...

1. If I 485 is denied, your EAD is revoked immidiately, too. So the option of using EAD as a backup plan is out of the question.
2. If you can still apply for 245(i)? Ask a lawyer, as this is a complicated question.
 
spek said:
Hi adyav,

Thanks for your answers.

As I have mensioned before, my lawyer already replied to NOID yesterday and so I can't do anything now for my lawyer's reply.

In the worst case, if my 485 is denied,
1. Can I appeal to reopen my case and continue on my EAD until the decision for the appeal is made (I don't want to leave my husband and Daughter)?
2. Can I request INS to consider me in 245(i) at that time?

Will be waiting for replies.

SPEK :(
Click to expand...

Just a suggestion:

If your husband is still on H1, immidiately apply for a H4 and get it stampped from your home country.
If he is using EAD already, you may not be eligible for a H4 anymore. Seek professional help to explore your options, ASAP.
 
My wife's is a similar Case (but noting from CIS yet)

I will appreciate if you post the results of your reply in this forum. We are keeping our crossed. Did you file for your labor certification before April 30 2001. If not then you are not eligible for 245(i). That may be the reason your lawyer did not mention it in the response.
 
Well! I would be hesitant to leave the country if your 'continued stay in legal status' is questioned - since you may come under the 3 year or 10 year re entry ban. So watch out.

245(i) is always an option provided you have filed an 'approvable' petition by April 30, 2001 and were physically present in the United States on December 21, 2000.

Also, if you have the right lawyer, they can file an appeal on humanitarian grounds in the worst case.

It should workout - I dont think there's reason to panic.

good luck
 
Lowell,
Thanks for your support and it definitely gave me a hope to fight for my rights to stay with my family.

Needhelp1,
Thanks again. I agree with all the statement of yours and going to talk to my lawyer today to find out whether I'm qualified for 245(i) or not in the worst scenario.

Adyav,
Thanks again. My husband is in H1 and going to apply for 7th year extension soon but I think fighting from US would be better than going back to Indian Consulate. I will update my lawyers answer for 245(i).

Certainlyrandom,
Thanks for your reply. I will definitely update on my result in this forum but I sincerely hope you shouldn't come to my situation.
No, we didn't apply for Labor before April 2001 and so even I think I may not qualify for 245(i) but in the NOID it states:
"However you can apply for 245(i) with 485 supplement form and $1000 penalty"
And so I'm going to talk to my lawyer about that today.

Ndny,
Thanks for your help. Even we are thinking not to go to Indian Consulate (that's my last option) before the approval of 485.
Can you tell me what exactly is “you have filed an 'approvable' petition by April 30, 2001 and were physically present in the United States on December 21, 2000”?
I came to US in January 2000 and my husband applied for Labor in October 2002. So do I qualify for 245(i)?
I will certainly talk to my lawyer about "appeal on humanitarian grounds" as you have suggested.

I have one more question:
Getting a letter from senator/State person, will it help to approve my case now?

SPEK
:(
 
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Spoke to Lawyer:
1. I'm not qualified for 245(i).
2. In the worst case of denial, we have to appeal within 30 days.

Thanks,
SPEK :(
 
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I am sorry to hear this

This is very stupid reason to deny the pettion. I hope they will approve your application. I too did not know to apply for my wife's extension for about 4 months and she was out-of-status for that period.

for your question:

'Can you tell me what exactly is “you have filed an 'approvable' petition by April 30, 2001 and were physically present in the United States on December 21, 2000”? "

Ans: The LC application should have been filed on or before 'April 30, 2001' and approved later and you should have been in US on Dec 21,2000.

245(i) is a package for Illegal residents given at that time and because of the simple problems, good people needed to use this as there is no other option.
 
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