Soon to be USC. Out-of-status Wife travelling overseas

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Desi4ever

Registered Users (C)
I'm soon to a be a US citizen ( see signature below )My wife is a citizen of India.

I got married after I got my green card. My wife had a US visitor visa ( B2 ) before we married and entered USA on B2 in April 2005.

I applied for her I-130 in July 2005.

She then got her H1-B approved in Oct 2005. She has not left the country ever since. She does not have a H1-B stamp yet on her passport.
Her I-94 is valid till October 2011.

She was not working between November 2007 and Mar 2009 as she had to take care of our child. She resumed working from March 2009. Yes , she was out of status between Nov 2007 and Mar 2009.


Her I-130 was approved in Jan 2009 approval notice with a priority date of July 14,2005.

Now because of some important personal reasons my wife needs to visit India for a few weeks. I understand that if she stays here she will surely get a green card after her I-485 is processed.


1. What are the odds of her H1-B being stamped at a US consulate in India ?
2. If her H1-B is rejecte because of her past out-of-status factor, will it have an impact on her green card consular processing as well ? 3/10 ban ??
3. If I apply for her I-485 just before she leaves the US , can she come back to the US on Advance Parole ? Is this method less risky ?
4. Can I use an immigration lawyer in India who will represent us ( not just do the paperwork ) for handling her H1-B/immigrant visa case ?


Thanks
 
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Was your wife on a leave of absence? What is the validity of her H1 approval notice? Is she now working with the H1 sponsor?
Your wife could be subject to 3year/10year bar. Since this is a serious issue, please consult with a professional attorney dealing with immigration matters.
 
There is nothing from her employer that says she was on leave of absence. She is still with the same employer that sponsored her visa. She was not not paid from Nov 2007 through March 2009 no paystubs, W2 etc .However her employer extended her H1-B when she resumed work and its valid through July 2011. We did consult an immigration lawyer and the lawyer simply said " DONT LEAVE THE COUNTRY TILL YOU GET A GREEN CARD IN HAND" which is understandable but since its not possible I'm trying to find out other ways like if I can use an immigration attorney who has offices in India to represent us.
 
If she has an I-94 that has not expired and USCIS has made no determination that she has been out of status, no illegal presence has accrued.
 
Desi4ever said:
She then got her H1-B approved in Oct 2005. She has not left the country ever since. She does not have a H1-B stamp yet on her passport.
Her I-94 is valid till October 2011.

She was not working between November 2007 and Mar 2009 as she had to take care of our child.
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Did the I-94 of her H1B expire sometime between November 2007 and March 2009? Based on her first H1B starting in October 2005, didn't it expire in October 2008? If that is the case, that would leave 6 months of unlawful presence* from October 2008 to March 2009, triggering the 3-year bar if she left the US before obtaining her green card.


*may be a bit less than 6 months, if it expired late enough in October and she resumed working early enough in March to keep it just under 6 months. And maybe the case could be made that there was no unlawful presence if she renewed her H1B in October 2008 immediately after the first I-94 expired, although I am not sure how valid that argument would be given that she did not resume working in October 2008. It still would be a big gamble to leave the country if one has to depend on USCIS and DOS agreeing with those nuanced interpretations to avoid the 3-year bar to entry.
 
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Desi4ever said:
We did consult an immigration lawyer and the lawyer simply said " DONT LEAVE THE COUNTRY TILL YOU GET A GREEN CARD IN HAND" which is understandable but since its not possible ...
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It is "not possible"? Suppose it was 100% proven that she would be banned from the US for 3 years or 10 years if she left the country before getting a green card. She would stay in the US until her green card is approved, right?
 
Thanks for all the replies. For the sake of completeness of this thread here is the latest info

Wife stayed back. I will be taking oath as a citizen next week and will be doing an I-485 for the wife.
 
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