Please help unlawfull presence problem and 485

J

jaibholababa

Registered Users (C)
Due to a very unfortunate situation my wife's H4 Visa did not get filed for extension in 22nd March 2004 and she accured more than 6 months but less than 12 months
unlawfull presence but later filed her extension got approved from 5th Jan 2005 till August 26th 2005 ( my H1B extension ).We both have I485 pending applied december 28th 2004.We have our
Advanced parole approved and we need to make a trip to India in september , will be using the advance parole as our visa expires on 26th august.

What problem we are going to face and how it can be resolved. In Aadvance parole it says that if you accured more than 180 days unlawfull presence you will be bar for 3 years if you have 485 pending and you leave the country.


Please help...
 
You have a serious, serious problem. Not only is she subject to the 3-year re-entry bar, but unless you can claim 245i relief she is ineligible to adjust status.

You need an attorney to file a nunc pro tunc petition.
 
I fully agree with TheRealCanadian.
245i you can use only if you 1) had PD before (do not remember date)2001, and 2) were physically present in USA on (do not remember) December 2000.
You must fill a special form and pay additional fee for 245i.
Please take care on 'nunc pro tunc' H-4 petition and consult a good lawyer, your wife should not leave USA before you get this covered.
 
You will be fine

I don't know if it helps you or not, but similar thing happened to me. My employer forgot to apply for H4 extenstion to my wife along with my H1B extension. She was out of status from Feb 1999 to Dec 1999. We didn't realise that she was out of status. We got her H4 extension in Dec 1999 based on my new H1B. After that we went to India and came back without any problem.

Take all options into consideration and take your own decision.
 
Hi arv_99,
If you do not mind can i call you ..
this will be real help if i can talk to you directly it will give me immense
peace of mind..

here is my e-mail id..

prewani@rediffmail.com

if you forward me your e-mail id or phone no. that will be real help
 
Don't let her leave USA. What I suggest you to do for your spouse is that she must stay in usa until her 485 is approved. I have seen many cases since 2001. If you let her leave USA, she would not be able to enter USA for 3 years or 5 years or 10 years (depends on how long she had been living in usa illegally in the past).

Yes, you need to talk to a lawyer immediately (best advice) before it is too late.
 
Same case as mine

Sime case happened to both me and my wife. My stupid employer forgot(???) to make payment for my H1B extension. Obvisously my H1B extension and wife's H4 both were denied. Neither company, nor lawyer reveive any rejection notices. The status on web site kept showing as pending. When 180 days from expiry of old visa were getting closer, employer awoke (I made him) and filed a new H1B extension application under premium procesing. This got approved with start date of new application (a gap of close to 180 days)
Meantime wife found a job and her employer filed for H1B. Got approval but status change rejection, because of not holding valid visa (Employer did not file H4 extension along with second H1B renewal). INS sent a letter saying, wife should leave the country or possibly face 10 year bar. Wife's employer's lawyers and my employer's lawyers both got respective local senators involved. INS opened the case and approved her H4 with backdate (So no gap). Lawyers had adviced her to strictly not leave the country while application was opened by INS.....as Leaving country gives them a clear indication that you wer at fault (?????? No idea...Lawyer says that) . Also, its easier to fight the case when you are in than out.
 
I had similar situation

I had applied for 7th year H1 for me and H4 extension for wife before our I94 expired and well after my I94 expired (approximately after 230 days) INS denied my extension application. Waited 30 days to file appeal and meanwhile, Labor was approved and was able to file I140/485/EAD/AP together. (Applications were filed 40 days after H1 was ultimately denied, and 8 or 9 months after I94 expiry. So I really don't know what counts). Got EAD and AP approved in 30 days and went back to work after EAD and wife left country with AP. She could come back without any hassel after 3 months.

I don't know it was by luck or by rule they let my wife back in, but my lawyer said my unlawful days started only after the H1 was denied and not after the I94 expired since we filed the H1 before expiration. If thats true I have stayed only 40 days unlawfully/out of status and the 3/10 year bar didn't apply in our case. Hoping 245k will cover my case. Note, my H1 appeal is still pending and Motion to reopen was denied.

That is my case, and consult a lawyer and do a lots of research in this site. Now got our 2nd AP's approved and hoping to go to India in couple of months myself. Hoping nothing will happen.

Good luck to you and your case is not that scary. You should be able to fix your previous gaps.
 
kv2002 said:
I don't know it was by luck or by rule they let my wife back in, but my lawyer said my unlawful days started only after the H1 was denied and not after the I94 expired since we filed the H1 before expiration. If thats true I have stayed only 40 days unlawfully/out of status and the 3/10 year bar didn't apply in our case. Hoping 245k will cover my case. Note, my H1 appeal is still pending and Motion to reopen was denied.
Click to expand...

That sounds reasonable to me. If the H-1/H-4 extension was timely filed and not frivolous then you were not out of status until it was denied. In such a circumstance you only accumulated 40 days of illegal presence. Not only do the 3/10 year bars not apply, but 245k will cover you.

There are many combinations, which is why anyone who suspects they might be subject to the 3/10 year bar should get an attorney's opinion - or two.
 
Similar Situation

Friends,

I was in similar situation. My company forgot to file my wife H4 extension along with my H1. We realised that my wife was out of status for more than a year. When I asked my employer he said it is it is ok not having H4 approval since I have valid H1. Then we filed H4 extension with outside lawyer. We requested INS to give H4 extension from back date (the date her I - 94 expired). Fotunatly we got H4 extension from back date without gap. Now our 485 is pending and we are planning to visit our country. Still will my wife stay be considered as illegal??
 
485 Rfe

I got RFE for me and My Wife 485 asking for the status from June 19 2003 to July 26 2004 (Reciept Date of 485).

I was working for company A, my H1 and My Wife's H4 is about to Expire on June 19 2003, Company A applied for (Both me and my wife )extensions with Reciept date June 19 2003 and got both approved on December 10 2003 with valid Dates December 01 2003 to December 31 2004

During the time of above Extension, I got an offer from company B in month of August 2003, they filed H1 B transfer with reciept Date August 27 2003 and I started working for them from August 27 2003, at the same time we filed I-539 for my wife to make sure they are in the same date range. But her Reciept Date is October 10 2003(I dont know the reason behind it). Both got approved in April 2004 for My case valid Dates are April 02 2004 to August 29 2006 and For my Wife Valid Dates are June 20 2003 to August 29 2006

While Applying for 485 We did't attached copies of approval notices for the Extensions from Company A??

When I talked to my lawyer he said that you both are in Legal Status. I am preparing for Responses to RFE, I am thinking of Attaching copies of Passport, I - 94, All Approval Notices (Including the Extension ones from company A)and Pay Stubs during that period which are continuous.

I am Still wondering me or my wife are out of status during that time? Gurus Please help us out in this situation.


Thanks
Anil
 
anil007dc said:
I got RFE for me and My Wife 485 asking for the status from June 19 2003 to July 26 2004 (Reciept Date of 485).

I was working for company A, my H1 and My Wife's H4 is about to Expire on June 19 2003, Company A applied for (Both me and my wife )extensions with Reciept date June 19 2003 and got both approved on December 10 2003 with valid Dates December 01 2003 to December 31 2004

During the time of above Extension, I got an offer from company B in month of August 2003, they filed H1 B transfer with reciept Date August 27 2003 and I started working for them from August 27 2003, at the same time we filed I-539 for my wife to make sure they are in the same date range. But her Reciept Date is October 10 2003(I dont know the reason behind it). Both got approved in April 2004 for My case valid Dates are April 02 2004 to August 29 2006 and For my Wife Valid Dates are June 20 2003 to August 29 2006

While Applying for 485 We did't attached copies of approval notices for the Extensions from Company A??

When I talked to my lawyer he said that you both are in Legal Status. I am preparing for Responses to RFE, I am thinking of Attaching copies of Passport, I - 94, All Approval Notices (Including the Extension ones from company A)and Pay Stubs during that period which are continuous.

I am Still wondering me or my wife are out of status during that time? Gurus Please help us out in this situation.


Thanks
Anil
Click to expand...


No you both are fine. Send both approval notices.
 
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