questions on GC - out of status

G

greyhairduetogc

Registered Users (C)
Hi,
I have asked too many questions, Thanks for your time and reply in advance.

My girlfriend(now wife) has a bachelor's in Engineering and has worked in India for about 4 yrs after graduation in a reputed IT firm(US subsidiary) and entered US on H1 visa in Nov 2006 through a IT consulting firm and we got married in Dec 2006 in US. Since we were not married before she came to US, she mentioned as "Single" in her H1 - Non immigrant Visa form to obtain a H1 visa.

This week(Apr 14th) she found out from internal sources in her company that her employer has sent a letter to USCIS to cancel her H1 on Feb 13th. They did not inform her of the termination and did not provide any official communication. She also found out that they have canceled the H1's of few other consultants who were on bench around the same time. The employer is unresponsive and not providing any details.
From Nov 2006 to Feb 2008 they were only able to place her on a client project for only 2 months(dec 2007, Jan 2008) and hence she has pay stubs for only those 2 months.

Technically she is out of status once her I-94 expires or her H1 is canceled.
We are exploring ways of a possibility for her to Obtain a new H1 from another firm and go for Consular processing to obtain a new H1 visa stamp. But she is afraid to face an interview at the consulate since she does not have pay stubs for 2007 and they might consider her out of status greater than 180 days and she might come under the 3yr/10yr entry ban.

I am a Permanent resident and eligible to apply for Naturalization on May 29 2008. Once I am done with my Naturalization I will sponsor her through family based GC and I am trying to gather all documents to make her case solid.

- is requesting an official termination letter from her Employer necessary?
- Since the employer did not pay her on Bench will requesting back pay and filing a complaint with Dept of Labor help during her GC process?
- Would filing a complaint with Dept of Labor cause any problems to her stay in US until she applies for GC(which might be another year from now)?
- Since we got married within 1 month of her coming to US will it affect her GC interview?
- We did not have a huge wedding ceremony, we just got married in the Major's office and had a small recpetion the previous night at a restaurant with about 75 people(mostly family and close friends). So don't have a elaborate wedding photo album, just photos with mayor and some photos at reception. Would this be a issue?
- Since marriage we have maintained joint bank account, filed joint tax returns, Joint car insurance, added her as dependent on my health insurance, photos of us on trips. The rest of the documents(rental lease, phone, utilities etc) is in just my name. is this sufficient?
- is it safe for her to drive(license expires in Nov 2009), travel by air within US, use credit cards etc. during this time?

She never expected the employer to be such a lousy one which messed up her career and immigration status. They place ads in Indian newspapers promising great career and benefits.
Your thoughts and suggestions to come out of this mess is appreciated.

Thanks
 
- is requesting an official termination letter from her Employer necessary?
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for filing a GC? no.

- Since the employer did not pay her on Bench will requesting back pay and filing a complaint with Dept of Labor help during her GC process?
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since you are going to be a USC, it won't matter. All you have to prove is that your marriage is bona fide.

- Would filing a complaint with Dept of Labor cause any problems to her stay in US until she applies for GC(which might be another year from now)?
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I don't see how it would, but then - I am not an expert on H1b matters, so research their subforum and ask your questions there as well.

- Since we got married within 1 month of her coming to US will it affect her GC interview?
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no. Getting married is permitted at any time. Filing for a GC at any time is not.

- We did not have a huge wedding ceremony, we just got married in the Major's office and had a small recpetion the previous night at a restaurant with about 75 people(mostly family and close friends). So don't have a elaborate wedding photo album, just photos with mayor and some photos at reception. Would this be a issue?
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we had 33 people at our wedding. Didn't make any difference.

- Since marriage we have maintained joint bank account, filed joint tax returns, Joint car insurance, added her as dependent on my health insurance, photos of us on trips. The rest of the documents(rental lease, phone, utilities etc) is in just my name. is this sufficient?
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yes. But you could add her name to the utility bills. They didn't allow us to add my name to the account itself, but allowed us to put our name in the address line, and that was sufficient. Most likely, you will have been married for more than two years by the time she adjusts, so it's going to be a huge plus in itself.

- is it safe for her to drive(license expires in Nov 2009), travel by air within US, use credit cards etc. during this time?
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drive - yes. Everything else - maybe.
 
Your wife has been out of status much of her time in US since she was not getting paid. Due to the length of time involved (paid only 2 of 17 months), I suggest you get a consultation with an immigration attorney since this status problem could have long term consequences. Since you will be naturalizing soon, having the attorney help with that process in this situation is a good investment.
 
Make sure she doesn't leave the US until she receive the GC through you otherwise she won't be able to reenter for 3/10 years.
 
nscagony said:
Make sure she doesn't leave the US until she receive the GC through you otherwise she won't be able to reenter for 3/10 years.
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Unless her I-94 has expired or she has a written notice from USCIS declaring her out of status, no illegal presence has accumulated.

You may want an opinion from an attorney to be sure - I recommend such a course of action whenever one suspects that the illegal presence clock has started, but I suspect an attorney will repeat what I have just told you. However, unless she has a means to return to the US, I wouldn't recommend that she leaves, just not for fear of the re-entry bars.
 
H1 is not a D/S status. To maintain status you must be paid the wage on the LCA every month. If not, your status ends. If you stay after that, you are out of status. The only part I agree with is go and see an attorney before making any decisions.
 
nscagony said:
H1 is not a D/S status. To maintain status you must be paid the wage on the LCA every month. If not, your status ends. If you stay after that, you are out of status. The only part I agree with is go and see an attorney before making any decisions.
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Out of status != overstay.

I'd be careful to say that out of status could trigger entry bar and leave the decision to the professionals.

Section 212 (a) is not clear on this. It says if unlawful presence reached 180 days, you get 3 year bar. And it defines "unlawful presence" as

"(ii) Construction of unlawful presence.-For purposes of this paragraph, an alien is deemed to be unlawfully present in the United States if the alien is present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled."

It all depends on what "expiration of the period of stay......" exactly means. It usually means I-94 expiration.
 
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Well it really hinges on whether USCIS recognizing a petition as withdrawn is an event that ends the authorized period of stay. Thats not a discussion I wish to have with an IO at the POE. The safest bet is getting a good attorney and not travel until the GC is approved.
 
greyhairduetogc said:
- Since the employer did not pay her on Bench will requesting back pay and filing a complaint with Dept of Labor help during her GC process?
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I don't know if it will help, but I don't think it would hurt. In those cases where the employer was sued for back wages due to benching, I don't think they penalized the employees. But check with a lawyer to make sure. And certainly, filing that complaint is an important step with being able to claim that back pay. She could probably join with the other affected employees to hire a lawyer and sue as a group. In the meanwhile, she should try to get another H1 job.
 
Hi GotPR?

If Out of status != overstay then would she still qualify for Family based GC with AOS within US being in "Out of Status"?
What does USCIS forgive, Out of Status or Overstay? for being married to a Citizen at the time of GC?

I am also trying to schedule an appointment with a lawyer today.
Will keep u posted on what they say.

Thanks
 
greyhairduetogc said:
Hi GotPR?

If Out of status != overstay then would she still qualify for Family based GC with AOS within US being in "Out of Status"?
What does USCIS forgive, Out of Status or Overstay? for being married to a Citizen at the time of GC?

I am also trying to schedule an appointment with a lawyer today.
Will keep u posted on what they say.

Thanks
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If you were a US citizen, it doesn't matter if she is on out of status or overstaying. She can adjust the status in the US. But I wouldn't recommend international travel til she gets GC since I'm not at the position to interpret the ambiguous wording of the law. If she needs to travel, she should talk to lawyers.
 
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My concerns include not only her obtaining the green card but her naturalization in the future if she chooses to do that.

I'm glad to read that you will check with an immigration lawyer.
 
Spoke with a lawyer and he mentioned she could apply for H1 stamping at the consulate if she leaves US before 180 days of Feb 13th. According to him the consulate will not ask about previous paystubs, but will validate her degree and past work experience.

Finding a employer who can sponsor H1 within that time is the challenge.

He also mentioned
- if she decides to stay here in US and wait for my naturalization to File for her GC, that is also not a problem.
- According to him at her GC interview they will not be interested on How she went out of status and for how long, but if the marriage is bonafide and if she has entered the country legally and not committed any fraud in any of her paperwork.
- Also since she entered on a H1 visa and its dual intent, so even if she mentioned in the interview that she planned to get married in US it should be ok.

Finally he concluded that there is no guarantee in my Naturalization timeline and as well as her visa stamping at the consulate. At the consulate they might want to review the application in detail and they might want to get more details of the employer and some of the cases might get stuck for months(6-12).

He left it to us to choose among the both options.

I am thinking of spending few more $$$'s and get a second opinion from another lawyer.

Thanks for all your responses.
 
She is not considered out of status till she receives a notice from USCIS and ones they send notice she has 30 days to respond or leave the country.
Now if u are a GC why you have to wait to apply for her permanent residenncy. You can do that right away and when u get ur citizenship u just update ur file. Not a big deal.
I do not see any issues and stop worrying for no reason.
 
She is not considered out of status till she receives a notice from USCIS and ones they send notice she has 30 days to respond or leave the country.
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what if the USCIS sent it to her employer's address and she never got it?
 
I checked the online status using her H1(approved in 2006) receipt number. It still has the old status of approved. Does this mean that the H1 is not canceled still?
Will the online status be updated later?
 
greyhairduetogc said:
I checked the online status using her H1(approved in 2006) receipt number. It still has the old status of approved. Does this mean that the H1 is not canceled still?
probably
Will the online status be updated later? probably
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My I140 is still pending online though it was approved 3 years ago.
Conclusion: Online is not the best source.
 
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