RFE on wife's - I485 Non-Immigrant Status. Pls advise.

R

rkg8

Registered Users (C)
Hi,
This is my wife's case.

- She came to US for the 1st time in Oct. 2006 on H4. Her I-94 card in the passport had Date stamped until May 2009. We did not step out of US after coming in Oct. 2006.

- In Oct. 2007, she got her H1B. She couldn't work due to personal issues and in Nov. 2008 her H1B got revoked.

- When i asked my company Immigration HR that since her H1B got revoked, do i have to to apply for any Status change or anything like that. But HR told me specifically that since her I-94 card has till May 2009, she is legal to stay till that time and i don't have to do anything other than that i have to apply for her H4 extension before May 2009.

- I applied for her H4 extension in April 2009 and she got her H4 extension with no issues.

- When i applied for her I-485 recently, i submitted all the docs except for that revoked H1B I797.

- She recently got a RFE on I-485 asking her to submit all her Non-immigrant Status since Oct. 2006. They also mentioned that - "It appears that you were a H1B holder from Oct 2007 until Nov. 2008".

- I am planning to submit that revoked H1B 1797 now. But, my concern is, would this be enough? or they are going to look at the period from Nov. 2008 until May 2009 and issue more RFEs? Is this going to cause any issues to her GC approval?

Please advise.
 
It appears to them that she might have been out of status from Oct. 2007 to Nov. 2008. In addition to submitting documentation about her H1B, she'll need to explain that she remained in H4 status throughout all the years, never using the H1B.

Did she explicitly apply for a change of status to H1B, or did she only get the H1B petition approved, without any request for a change of status? If she applied for a change of status to H1B, it's probably going to be more difficult to convince them that she remained in H4 throughout.
 
rkg8 said:
Hi,
This is my wife's case.

- She came to US for the 1st time in Oct. 2006 on H4. Her I-94 card in the passport had Date stamped until May 2009. We did not step out of US after coming in Oct. 2006.

- In Oct. 2007, she got her H1B. She couldn't work due to personal issues and in Nov. 2008 her H1B got revoked.

- When i asked my company Immigration HR that since her H1B got revoked, do i have to to apply for any Status change or anything like that. But HR told me specifically that since her I-94 card has till May 2009, she is legal to stay till that time and i don't have to do anything other than that i have to apply for her H4 extension before May 2009.

- I applied for her H4 extension in April 2009 and she got her H4 extension with no issues.

- When i applied for her I-485 recently, i submitted all the docs except for that revoked H1B I797.

- She recently got a RFE on I-485 asking her to submit all her Non-immigrant Status since Oct. 2006. They also mentioned that - "It appears that you were a H1B holder from Oct 2007 until Nov. 2008".

- I am planning to submit that revoked H1B 1797 now. But, my concern is, would this be enough? or they are going to look at the period from Nov. 2008 until May 2009 and issue more RFEs? Is this going to cause any issues to her GC approval?

Please advise.
Click to expand...

In addition to what Jackolantern mentioned....she has been caught attempting to conceal information and that in itself is a reason to run her through the wringer.

That said, read up on the subject:
http://www.slideshare.net/BigJoe5/matter-of-s-and-bc-9-in-dec-436-ag-1961 and
http://www.uscis.gov/err/H5 - Waive...ecisions_Issued_in_2012/May262012_01H5212.pdf (posted by USCIS on May 26, 2012)
 
Her H1 1797 says that change of Status has been approved. And, in that I797 below I-94 #, the Validity reads 10/2007 to 09/2010.

There was no intention from our side whatsoever to hide her H1B information on purpose. I was told that since her H1B was revoked, i can skip it while applying for I-485. Now looks like they are asking for it, so submitting her revoked H1B as well.
 
Her change of status was approved, and then she stayed in the US for over a year without using the H1B or promptly switching her status back to H4? That could lead to big problems. Consult a lawyer before you submit anything to USCIS.
 
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My wife found new info. reg. this. Since it's been a while it skipped our mind but today my wife pulled up the Resignation letter that she wrote in 09/2007 to the company HR that she won't be joining the company on H1B starting 10/07 due to personal issues.

The letter was accepted by the company and they revoked her H1B in 2008. Since she informed the company even before her H1B had started, we were wondering if she can be considered to be on H4 always. Should this letter be included in the response to RFE? I will talk to Attorney anyway.
 
Talked to the Attorney. She is saying my wife has been maintaining her H4 Status throughout and there are no gaps and it is fine to respond back to the RFE. According to her if that H1 was an issue, my wife wouldn't have gotten her H4 extension approved in 05/2009. USCIS would have denied it.

I told her USCIS may have overlooked that H1 period and USCIS doesn't look into Out of Status issues and it's upto each individual to maintain their Status (that's what i read at few places).

Next thing i said was when her H1 got revoked in 2008, we should have applied for her H4 transfer. She said that her H4 transfer would have got denied because she was not maintaining her H1 (because no Pay Stubs) in the first place.

From what i gathered on the Internet, solution to my wife's 485 issue would be to Withdraw current 485 petition..go back to India..get H4 stamping done...come back into US with a new I-94 and re-apply 485 with this new I-94. This would wipe out her previous Out of Status issues because as per section 245K, for 485, they consider Out of Status issues ONLY from the most recent visit. I proposed this to the Attorney..but she is thinking i don't have to do all this and my wife's status is fine as is. She left it to me and told me to get back to her in a day or two and let her know the decision whether i want to withdraw current 485petition for my wife or respond to the RFE.
 
I don't see any advantage to withdrawing the I-485 petition. I'd emphasize in the RFE response that your wife never started employment and maintained H-4 status, and see what USCIS does. Worst case the I-485 gets denied and you need to re-enter and refile.
 
Actually that thought came to my mind. Thought of taking the risk and responding to RFE and see what happens. But incase it gets denied and when we re-apply i believe they ask for/look into previous I-485 denials, it might not leave a good impression and she might run the risk of getting denied again. I believe it is never a good thing to have previous denials. On the other hand, we thought going to India and coming back is risk-free for I-485 because of that 245K section.
 
She should not leave the US because of the fear of potential I-485 denial affecting a future application. If it's not for something like a conviction, the past I-485 denial won't hurt; the new case will be evaluated on its own merit. Any questions about the old denial would just be for checking whether the underlying facts for the denial still exist and still are disqualifying.

Leaving the US now would be like jumping from the frying pan into the fire; it would only make the risks worse. If that 13-month stretch of unused H1B is a serious problem, it could prevent her from reentering the US if she leaves. At least if she stays in the US she can appeal. It looks like the best strategy is to explain that she maintained H4 status all along, and never worked for the H1B employer.
 
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