Refile I140/485, out of status

J

JPGC

Registered Users (C)
Hi,

I have a question for my dependent:

My I140/I485 was denied on 6/16/05 for the I140 issue of ability to pay. I refiled I140/I485 for me and my dependent with supported information on 9/20/05.

The problem is my dependent was out of status on 9/20/05, but not more than 180 days.
Question 1: Is it true when we refiled I485 on 9/20/05, she was back to status? We got the I485 notice on 9/22/05.

Question 2: Can she reapply EAD and AP based on this new I485?

Question 3: Is there any problem if she uses AP to reentry US as she was out of status for some days but not more than 180 days?

We would be appreciated if you can give us your suggestions.

Thanks a lot.

Sunil
 
Re-file I-140 & I-485, out of status issue

OK, here is the story:

I filed LC (EB2) in Feb. 02, got approved on June 04, filed 140&485 on 7/29/04, denied on 6/16/05 because of the ability to pay issue. I am on H1b1 always.

However, my wife, she entered US on F-2, then change to F-1 status so that she could go to the college. She applied EAD on 7/29/04 with my 140&485. It was approved on 9/9/04. She graduated from the college in Dec. 04. However, she started using EAD to work from 11/1/04.

The issue here is since my first 140&485 got denied, her EAD had no basis. We didn't know the deny decision until August 05. We re-filed 140&485 with substantial new supporting documents along with her EAD & AP applications on 9/20/05. None has been approved yet.

Questions are:

1. Is she back in status on 9/20/05 based on the new filing?
2. Since I never apply a H-4 for her, can I file a H-4 for her now?
3. Will she have any trouble if she uses AP to reenter US? because she was out of status for a while.
4. Assume she had H-4 before, when she used EAD to work, would she still have had H-4 valid?
5. Is 245K applicable to my wife's situation?
6. Would that be more beneficial or safe for her to get a H-4 outside the US such as go back to India to get a H-4?

Thank you guys! Looking forward for all the input!

Sunil
 
JPGC said:
OK, here is the story:

I filed LC (EB2) in Feb. 02, got approved on June 04, filed 140&485 on 7/29/04, denied on 6/16/05 because of the ability to pay issue. I am on H1b1 always.

However, my wife, she entered US on F-2, then change to F-1 status so that she could go to the college. She applied EAD on 7/29/04 with my 140&485. It was approved on 9/9/04. She graduated from the college in Dec. 04. However, she started using EAD to work from 11/1/04.

The issue here is since my first 140&485 got denied, her EAD had no basis. We didn't know the deny decision until August 05. We re-filed 140&485 with substantial new supporting documents along with her EAD & AP applications on 9/20/05. None has been approved yet.

Questions are:

1. Is she back in status on 9/20/05 based on the new filing?
2. Since I never apply a H-4 for her, can I file a H-4 for her now?
3. Will she have any trouble if she uses AP to reenter US? because she was out of status for a while.
4. Assume she had H-4 before, when she used EAD to work, would she still have had H-4 valid?
5. Is 245K applicable to my wife's situation?
6. Would that be more beneficial or safe for her to get a H-4 outside the US such as go back to India to get a H-4?

Thank you guys! Looking forward for all the input!

Sunil
Click to expand...

Usually the day you apply for I-485 your F1 is deemed to be abandoned. This is is because of change of your intent. This is little bit gray area.

If you apply I-485 after denial USCIS thinks that you applied while out of status. Recently in August 2005 some cases were rejected based upon the applicant filed I-485 after denial without having any other status. Search in Shusterman web site.

If it is less then six months after the denial date It is better send your spouse out of US and come back with new H4. Actually you should have filed I-485 spouse application only after re-entering. This may be the potential problem.
 
Re-file i140/485, out of status

Hi,

Thanks for your responds.

So that means 245k is not applicable to her. What is 245k for? If she goes out and reenters US, she can't refile I485&EAD immediately as there is no quota for EB2 now, right? Any other solutions?

Sunil
 
Advance Parole and Status issues

Hi folks,

My wife entered on an H4 into this country (Dec 2003), got an H1 approved through consultant in Oct 2004, began working in April 2005 for the same consultant and has been working ever since.

I filed me & My wife's I-485 AOS petition in Sept 2005, and upon lawyer's advice mentioned in her petition that she was on H1 without receiving any pay since she did not have a SSN upto Feb.

My immigration status is fairly clean, and she is on a derivative status.
While traveling on AP, will this issue (kind of out of status) cause a problem for her?

Please advise.

thanks,
Dabuk
 
I don't think your wife has out of status issue. Onec she gets her AP, she can use it to reenter US. Or she can get a new H-1B visa in India and use this to reenter US, that is the safest way.

Sunil
 
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