RFE on I485 for Not maintaining Non-Immigrant status

[HelpOnI94]

Friends !

I got a RFE on I94 status during I485 process. And we have to answer the query from uscis with in a month.
Here is my situation. I came on H4 visa. I was not aware that I need to take H4 document once my I94 expires.
(We were concentrating on visa stamping dates and sent it for revalidation and got it stamped)
I have filed for I485 through attorney just after 14 months of I94 expiry. (This was not noticed by my attorney also).
And since then we were on EAD and getting it renewed for last two years. Now we got the query on not maintaining NonImmigrant status
for 14 months gap of I94 expiration and before applying for I485. But I never applied for H4 document.
After my Visa/I94 expired, I have sent my passprot for Visa Revalidation and got it stamped.(Using my spouse H1)
Once my visa revalidated and stamped I have visited India on advace payroll and came back and then I got new I94.
Now I got a gap of 14months before I file my I485 and I94 expiration for which uscis asking for proof of non-immigrant status.
Please advise me what I should do ?
I have no proff of I-94 that I have for that 14months period.
Please let me know any one with similar situation got GC and how they handled this situation

 

[avi101]

your post is not very clear on whether you were out of status at any point.

Answer the following in detail so that someone can guide further..

- when did you come to US on H4
- when did your H4 visa expire
- did your husband apply for an H1B extension at any point before applying for I1485. if yes, what dates did it get approved for
- was H4 extension applied for you along\after with your husbands H1B extension.
- what is your I485 notice\receipt date (look at the I485 receipt for that)

Note, that if you have\had a valid h4 approval document ( but you had not yet got your passport stamped, you are still in status).

 

[HelpOnI94]

- when did you come to US on H4 : 03/2000
- when did your H4 visa expire: 05/02
- did your husband apply for an H1B extension at any point before applying for I1485. :yes, got approved in 01/01
if yes, what dates did it get approved for( aooroved for 01/01 to 11/03).
- was H4 extension applied for you along\after with your husbands H1B extension.(H4 was not aplied along with H1, but got H4 stamped in Passport).
- what is your I485 notice\receipt date (look at the I485 receipt for that): 485 filing date is :10/03.
- duration with out I-94 before filing the I485: 14 months.
Thank you.

 

[nathanss]

- when did you come to US on H4 : 03/2000
- was H4 extension applied for you along\after with your husbands H1B extension.(H4 was not aplied along with H1, but got H4 stamped in Passport).
Thank you.

I did not understand how you got passport stamped without applying/valid H4 with you. Was that stamped in the first H1?

 

[HelpOnI94]

Her first h4 expired while she was in US. Got her H4 visa revalidated at St.Louis using my second H1 visa.

 

[avi101]

- Is there an H4 visa on the passport that shows\ed validity till 11/03 ( same date as expiry of H1)?
- Your husband's passport had a new I94 attached to it but yours did not? ( when it came back from revalidation)
- How did you arrive at the 14 months figure?

I am not too familiar with the H4 process, but if there has been a valid H4 visa throughout before going into AOS, then status part is covered. That is what USCIS is primarily looking at in my opinion.

 

[HelpOnI94]

Yes, She got stamping through out( 03/00 to 11/03).
Only I94 is not there ( from 05/02- 11/03. The 485 was filed in 08/03. Thanks

 

[nathanss]

Yes, She got stamping through out( 03/00 to 11/03).
Only I94 is not there ( from 05/02- 11/03. The 485 was filed in 08/03. Thanks

Is it not the USCIS should revalidate the I-94 along with H4 as she has not travelled out of the country?

 

[avi101]

we got the query on not maintaining NonImmigrant status
for 14 months gap of I94 expiration and before applying for I485

Yes, She got stamping through out( 03/00 to 11/03).

Your RFE asks you to prove your nonimmigrant status since 05/02 - 485 filing date. You have H4 visa stamping on passport to prove that. I think you are fine from the information that you posted.


Not sure why the new I94 is missing in your passport, but here a couple of questions to probe further.

- Did your husband's passport have the new I94 ( with expiry of 11/03) after it came back from revalidation?
- Did your passport continue to have the old I94 after it came back from revalidation?

if answer to first question is yes, then i think USCIS\DHS may have goofed up and not attached new I94 to your passport.

 

[shokaido]

All right, people seem to confuse immigration-status (I-94) with visa stamp.

HelpOnI94's problem is that the wife has a valid visa stamp (which is from the State Department), but not a valid I-94 (which is from USCIS).

Visa Stamp != Valid Status.

The situation seems to be that:

The wife's I-94 expired. In stead of renewing the H4 status with USCIS, HelpOnI94 went on to get a new visa stamp from the State Department through St Louis lockbox.

The problem is that you only need a valid visa stamp when you leave/return to the US, but you need a valid I-94 throughout your stay IN the US before you file I-485.

HelpOnI94 need talk to an attorney as soon as possible. I believe few people on this immigration forum could help with this case.

 

[veggy]

Yep, Shokaido is right.

If she has used all her H4 visa stamps (meaning leaving and re-entering the US using those visa stamps), her I-94 MOST LIKELY would have been up to date. Problem is that she only obtained these stamps, but never actually went through the custom using these visa stamps, so she is out of status as long as USCIS is concerned.

The expiration date on a Visa Stamp only means one can use this visa stamp to get into the country before that date. It has NOTHING to do with how long one can legally stay in the country. The I-94 one obtained at the custom when entering the country or obtained with one's H visa petition determines how long one can stay in the country.

Confusing, isn't it.

 

[ss_guy]

I read the same problem in the past. it was lawyer's mistake, he didnt apply for H4. He wrote letter to USCIS and accepting his mistake along with REF reply. I think, it was accepted by INS. search the forum.

 

[avi101]

Shokaido and Veggy may be correct.

I did a search around and your case seems similar to this one copied below from http://www.americanlaw.com/q&a129.html


Heres another relevant link: http://www.murthy.com/news/n_nunpro.html

Contact a experienced lawyer RIGHT AWAY.
------------------------------------------------------
I am on an H-1B visa with a valid I-94 and my wife is on an H-4 visa. However, she does not have a valid I-94. Her I-94 expired eight months back with a valid visa on her passport. Is it possible to get an extension of her I-94 if she goes to Canada or Mexico for re-entry?

Unfortunately, because your wife overstayed the expiration date on her Form I-94, she is a visa overstayer under INA §222(g), which is the result of Section 632 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRAIRA"). The fact that she had a valid visa is not relevant. An alien subject to INA §222(g) will incur the following consequences:

1. A nonimmigrant visa is void as soon as the nonimmigrant alien overstays;
and

2. The alien is ineligible to be readmitted as a nonimmigrant except on the basis of a visa issued by the post in the alien's home country, unless "extraordinary circumstances" exist.

Regardless of whether extraordinary circumstances exist, her current visa is now void. She will therefore not be permitted to re-enter through Canada or Mexico since she does not have a valid visa. Also, automatic visa revalidation does not apply to her because: (a) she has already fallen out of status; and (b) her visa is void, rather than simply expired.

You will have to refer to the various Department of State cables describing "extraordinary circumstances" to determine whether she could apply at a consular post in a third country. Unless one of these "extraordinary circumstances" applies, she will not be permitted to apply for a visa in Canada or Mexico.

Your wife also has to be aware that she is incurring unlawful presence for the purpose of the three- and ten-year bars under INA §212(a)(9)(B)(i) She should depart from the United States before she has overstayed longer than 180 days.

 

[leo09]

I94 expiration and Visa

I dont understand how can you renew the I94 if you dont go outside the country. I have similar case my H1b expired in Feb 2005. I think when I came back from home country the INS gave me a I94 till me H1b expiry date of feb 2005. I renewed my H1b visa for 3 more years till Feb 2008. I went to canada to get my H1b stamped in September 2005. The US embassy in Canada took out my old I94 card and gave a new stamping. Now when I entered US thorugh the Niagara falls road the USA customs agent dint give me a new I94. So my attoreny told me that I could use the I94 on the I797 h1b approval petition.

I have a friend from China who did not go to his home country for six years and his I94 card has expired long back but he has had valid visas all along and he got his green card recently. My question is how can you renew I94 card if you dont step outside the country?

 

[avi101]

I dont understand how can you renew the I94 if you dont go outside the country.

By filing for an extension of stay. There is a form for doing that.

Or

when you apply for visa ( like H1B) extension, the approval document usually has the extended I94 at the bottom.

 

[EB1OR@NSC]

By filing for an extension of stay. There is a form for doing that.

Or

when you apply for visa ( like H1B) extension, the approval document usually has the extended I94 at the bottom.

HelpOnI94 : sorry about your RFE. USCIS is correct that the wife was out of status for 14 months as you did not extend your status by filing I539.

This is a serious matter and you should act immediately. You need a lawyer!!!! I cannot stress this more.

Now there is probably hope for your case. Read the folloing about 'Nunc Pro Tunc' cases on lawyer sheela murthy's website
http://www.murthy.com/news/n_nunpro.html
I think you may want to consult with this law firm! But act quickly!