RFE... Out of status for wife .. Please help....

G

gcvj

Registered Users (C)
Hi, my I-485 was approved two days back and in my wife\'s case they have sent an RFE to prove her status for about 8 months before she applied for I-485.

Here is the scenario:
She has her first I-94 permitted until Aug 1998.
She has approved H4 - Approval notice effctive until Feb 1999.
When I joined the current company in Nov, 1997 the @@#@$@# company forgot to apply for her H4. I was under the impression that they have this copy with them. When my visa was expired in Sep 98, I have renewed mine and my wife\'s visa by sending my H1 to Dept Of state and both our passports got stamped with validity from Sep 98 to June 2000. We have filed for our I-485 in Oct 99.

Now the point is she doesn\'t have the H4 approval notice from INS from 2/99. But her visa in the passport is stamped from Aug 98 to June 2000.
Should I use the I-245(i) regulation ???
My attorney is working on the case but didn\'t give any details yet...
Please please post any of your opinions.
 
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vsandeep,

The point here is not the validity of visa, they treat a person "out of status" by checking expiration of I-94. If your I-94 expires before the visa expiration one has to leave the country or apply for I-94 extension till the visa validation. Otherwise they treat the person as out of status.

When you applied the renewal they might have issued new I-94 for you and your wife.

What I see from your message is she has a valid I-94 till Aug\'98 and valid H4 till Feb\'99. So you have to check with your lawyer if he missed sending new I-94 that your wife got in when you applied for Visa renewal. I think that is the only reason.
 
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I am not sure if 245(i) would do any good because your are not a citizen. However if you have a relative who is a citizen they can file 245(i) for her and you have to do it prior to April 30. CONTACT AN ATTORNEY NOW!. Also, try talking to your lawyer about other avenues such as filing a $1000 fee for the out of status on H4 or plainly explaining the situation. Clearly make sure that you know the pros and cons prior to communicating to INS by talking to atleast 2 lawyers. Eaither way you have to work on this issue fiercely now.

I wish U all the luck and I pray everything goes well with you.

Bhanu
 
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The status of a person is determined by the I-94 not the visa, I presume your wife did not leave the country befor 2/99, because if she did, then she should be having a valid I-94.
Anyway, don\'t worry, instead of proving to the INS that your wife was in status , it is better to make use of 245(i) and pay $1000 and get over with this frustrating process.
 
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I had similar I-94 situation (still haven\'t heard from INS yet after applying for 1-485). My company didn\'t apply for H4 extension and even I forgot to notice it until right before we applied for 485 (by this time her I-94 expired by about 5 months). My attorney explained it in I-485 saying retroactive extension is in process (my attorney said since it hadn\'t crossed 180 day limit we can file for retroactive extension; even though couple of attorneys mentioned that going back to home country and getting the I-94 is the best solution!) and filed for I-94 extension. She got her I-94 extended retroactively and now we are anxiously waiting for whatever is in store for us during the I-485 process. Just wanted to share my experience, even though it may not be of much help to you...Good luck!
 
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Hi Bhanu, What do you mean by not sure whether 245(i) will help her or not? Isn\'t paying $1000.00 penalty a provision of 245(i) only? If not then what law says that you can pay $1000.00 penalty and get your status adjusted.
 
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After reading all this I\'m getting worried. My wife was on H4. After we applied for I485 we did not renew her H4 but instead applied for EAD and AP. She is now on her second EAD and she has been working with it. Her I94 naturally expired with her H4.Are you guys telling me that she is out of status?

Please respond.

TIA
 
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Not really, the $1000 provision existed prior to 245(i). The fee is in conjunction to the fees that need to be sent with 245(i).
 
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Dan Dan,

If the validity periods for I94 which on the H4 approval form has expired prior to acquiring the EAD status then you could potentially have issues otherwise you shouldn\'t worry.

Bhanu
 
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Bhanu,
I still have no luck in getting any response from my attorney. I have scheduled an appointment with Sheela murthy. As per your reply there is a $1,000 penalty that can be paid. Do you think this is a potential solution ???
 
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Dan dan,
You should be all right. Since the I-94 expired after you applied for I-485. The REF in my wife\'s case is specifically asking for the period before we applied for I-485.
 
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Thanks for your replies. My wife\'s I94 expired only after she got the EAD. Well I hope everything works out for u Sandeep.
 
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Does any of you know of any good immigration lawyer who could help me in this situation. I have called a couple of them already. Any of your inputs would be greately appreciated.
 
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My ID: 17-FEB-2000, ND-24-FEB-2000, FL 28-FEB-01, EB2, INDIA.
In the same context I want somebody to throw light on my wife\'s I-485 situation.
She entered US on H4 with I-94 (and visa) validity till Sep-2000. After entering she applied for Job and got her H1 processed. She got her Social Security number with this H1. But she never joined the company as an employee. After that, she went back to India in Oct-99 and came back again on the original visa and again admitted on H4 with I-94 validity till Sep-2000. Now she is on AD. Will it create any problem for her, the fact that she got H1 processed but never joined the job? (I don\'t know if the company ever reported back to INS that she didn\'t join the job)

Thanks in advance
 
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I don\'t think your wife will have any problems. That\'s straight forward and that is the way anybody who choses to maintain their own H1, but let his wife apply for EAD would do. Just IMO.
 
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My wife had the same problem of getting H4 stamped without having an approved H4 (and obviously having her old I94 expired) But she left the country and came back with a new I94. Do you think there might be any problem in her case too.

Any comments are welcome
 
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I think you should use the 245(i) which expires by the end of this month. You need to include a supplement A to Form I-485 and proof of remittance to the INS of the required additional sum($1,000) in order to request consideration under the provisions of section 245(i) of the Act.
 
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Ok guys, Here is the update on my wife\'s out of status case. I spoke with a famous immigration attorney, but didn\'t get much help than some comfort. So two weeks after my GC was approved and my wife\'s RFE was receiveed my attorney called me and discussed on her case. Her is what he is going to do. He is sending a letter to INS saying that we don\'t have the copy of the H4 approval and that we only have a visa stamp for my H1 approval period and there is a visa stamp on her passport for the same period. He is going to tell INS that the H4Visa stamping on the PP by Dept of State wouldn\'t be possible with out a valid H4 approval, which is missing. If the INS still doesn\'t buy this proposal then we might end up paying the $1,000 fee and filing the I-485(a) and that\'s it. He says we shouldn\'t worry about the April 30 dead line as I have applied for the labour cert before Jan 14,1998. So that is the story for now. If you have any questions you can ask me now.
 
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Vsandeep, Did your wife ever go out of USA and came back with new I-94 after having her H4 stamped or not. Was her I-94 expired when you applied for I-485??

Thanks for the clarification
 
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Her I-94 expired before we applied for her I-485. We never realised it until lately. We went out of US 6 months ago on AP and came back with an I-94 which has no dates but stamped \'indef\'.
 
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