Special case: H4 transfer rejected.

B

ball_magnet

Registered Users (C)
Hi,

We filed for I-539 (H4 transfer) from H1 for my wife in July 2003. Following which My self and my wife have filed for I140,I485,EAD,AP concurrently in Aug 2003. EAD is approved as of Nov 2003. Rest of them are currently being processed by INS.

On her I-539(H4 transfer) we got an RFE in Nov. but since our EAD was approved and I-485 is pending we requested for a withdrawal of the I-539 petetion.

Now we have recieved a letter from USCIS that her I-539 (H4 transfer) has been rejected based on her intention to become
a permanent resident (I-485, adjustment of status petetion).

1) So, our concern is will it be a probelm in processing the I-485, AP?

2) Alternatively, if the AP does get approved and I-485 takes its time; will it be a problem at the port of entry with regards to rejection of I-539.

thanks in advance
-Rajeev
 
We filed for I-539 (H4 transfer) from H1 for my wife in July 2003. Following which My self and my wife have filed for I140,I485,EAD,AP concurrently in Aug 2003. EAD is approved as of Nov 2003. Rest of them are currently being processed by INS.

On her I-539(H4 transfer) we got an RFE in Nov. but since our EAD was approved and I-485 is pending we requested for a withdrawal of the I-539 petition.

Now we have received a letter from USCIS that her I-539 (H4 transfer) has been rejected based on her intention to become
a permanent resident (I-485, adjustment of status petition).
-------------- That is the correct decision of USCIS because you did not reply to RFE and withdrawn the I-539 or H4 extension, it was wrong move on your part to withdraw I-539 or H4 extension for your spouse, I don’t know what was RFE that you could not reply if she was out of status or her I-94 was expired when you filed her I-485 her I-485 may be denied, one need to be in valid nonimmigrant status to file AOS or I-485.
Your I-140 is just filed it is not approved, if due to any reason your I-140 is denied, EAD, AP I-485 all will be denied. I don’t know who advised you to withdraw H4 extension; you should have maintained H1 and h4 status till I-140 is approved.
Visit: http://www.murthy.com/ukdenial.html

1) So, our concern is will it be a problem in processing the I-485, AP?
-----Read above
2) Alternatively, if the AP does get approved and I-485 takes its time; will it be a problem at the port of entry with regards to rejection of I-539.
--- If she gets AP approved then no problem at POE if I-485 pending. If I-140 is denied I-485 will be denied and in this scenario Her AP will not be valid and cannot enter US with AP

*** If you are still on H1 status better extend H1 status if 6 year completed you can get 7th year H1 extension based on pending I-140 or I-485.
** If you are on H1 then file H4 extension again for your spouse if her I-94 is not expired with correct documents (you know what was the RFE and send the complete documents she can get H4 extended. If primary H1 holder used EAD then you cannot file for her H4, as you are NOT on H1 status
* It is better to be on H1 and H4 till your I-140 is not approved it is in your interest
 
Thx ginnu for response.

Well, my lawyer sugested to withdraw the I-539 (H4 transfer).
As the EAD was approved and the I-485 was pending.

USCIS was right in rejecting the I-539 because we have
applied for immigration while requesting an H4 non-immigrant
status. We are concerned about the impact of this rejection in I-485.

Regarding the RFE: they asked stuff related to marriage cerficicate, emplyoment letter, last date of employment, etc.
Nothing we could not reply. But, we didn't see a point as we
already got the EAD.

On your other point about the H1 extension: this is an interesting
one, I have my thought about this ... and here I go..

The 7th year extension is based on I-485 pending status, if for some reason the I-140 is rejected then all others are invalid. So,
question is how does the H1 7th year extension which in first place is based on I-485 being pending are valid if the I-485 it self becomes invalid.

Definetly would like your thoughts on the above.....

On the thought about the I-140 getting rejected: well I might be optimiztic but dont see a reason why it should be. Applied in Aug-2003 so my guess it should be about Mar-may that it will get approved. Also, I am expecting to see the AP in jan-feb.

what say??
 
Originally posted by ball_magnet

Now we have recieved a letter from USCIS that her I-539 (H4 transfer) has been rejected based on her intention to become
a permanent resident (I-485, adjustment of status petetion).
Click to expand...
This is quite weird message. I did not have thought much if they said, as you did not respond to RFE they rejected the H4 application.

Are they telling here H4 and I-485 cannot co-exist?
 
Here is a summary of the USCIS response:

based on section 1101(1)(15)(B) and 8 C.F.R. 214.1(a)(3) the applicant has not established a residence abroad to which she intends to return, not has she established an intention to depart in a definite time. In fact an I-485 was filed on behalf of applicant.

In addition, Matter of Safadi, 11 I&N Dec. 445, states taht the service has authority to terminate the period of the nonimmigration stay when it becomes aware of the alien's intention to remain in the US indefinitely.

Therefore the application is denied.

--------------

any thoughts...
 
Originally posted by ball_magnet
USCIS was right in rejecting the I-539 because we have
applied for immigration while requesting an H4 non-immigrant
status. We are concerned about the impact of this rejection in I-485.
Click to expand...

Absolutely not. USCIS is forbidden (by law) from denying a change to H or L status, entry in H or L status or an H/L visa. This is a clear case of Service error.

If the H-4 spouse has an EAD and is using it, then H-4 status makes no sense. The only advantage would be to save you the hassles of renewing AP every year, but if you're on a 7th year H then you have the same issues, and it might actually be cheaper to use AP than to extend H-4 status and get a new visa stamp each year.

So, question is how does the H1 7th year extension which in first place is based on I-485 being pending are valid if the I-485 it self becomes invalid.
Click to expand...

No regulations have been made on the matter. My own layman's opinion would be that the H-1B remain valid until the end of the 1 year period. Even if they did not, no illegal presence would accumulate, so there's no practical consequences.
 
Originally posted by ball_magnet
based on section 1101(1)(15)(B) and 8 C.F.R. 214.1(a)(3) the applicant has not established a residence abroad to which she intends to return, not has she established an intention to depart in a definite time. In fact an I-485 was filed on behalf of applicant.
Click to expand...

What a load of crap. H and L are explicit dual intent statuses, and permit immigrant intent and have no foreign residency requirements. If you want to fight this, you can, since this USCIS adjudicator obviously fell off the turnip truck. Practically speaking, if you're on a 7th year H it's not worth it.
 
In RFE they requested for last pay slip. Since they did not submit the pay slip CIS does not know when was her ‘last working day on H1’. That means they do not know when she lost her H1 status. After loosing H1 status she went into Pending AOS status. From Pending AOS to H4 is possible only if she goes to consulate. That might be reason for rejection.


Does this explanation make any sense ?
 
Originally posted by tammy2
Does this explanation make any sense ?
Click to expand...

Maybe, but USCIS explicitly stated that they rejected the H-4 COS because of immigrant intent, which they are legally forbidden to do.
 
To therealcanadian:

Can you let me know where I can find the law that states that you cannot be rejected H4 if you have applied for I-485. (My understanding per the section codes sent say that they are entiteled to not only deny the application, but can also terminate an already approved non-immigrant status if they come to know about our intention of taking up permanent residence.)

Btw, there is an extra "1" in the section code I sent in previous mail that was a typo.

Tammy: I am not sure about you explanation, based on the reply all they are saying is that We dont show intent to go back in a definite time (also filed I-485)... apart from that they dont talk about not providing enough documentation etc.

On a side note: My 6th year is expiring next month. (If I had replied to RFE the H4 probably would have been approved by just till next Jan 2004). As one of you was pointing, I dont see any point in extending H1/H4 as I have to pay portion of these expenses out of my pocket. Need less to say, I dont plan to apply for 7th year. My wife though she has an EAD has not yet started using it.
 
I agree with therealcanadian, USCIS can terminate B1-B2, F1, J1 or anyother non-immigrant status and also reject extention of that status if you have an AOS pending.

However, H and L visa are an exception to this case because unlike B/F status (which is purely non-immigrant intent) H/L status has dual intent i.e. immigrant and non-immigrant intent. That is why people can still stay on H/L status, and even re-enter on a valid H/L visa even if they have a 485 pending.

You can read up this http://www.murthy.com/UDnewins.html article which will explain USCIS's policy on H/L and permanent residency.
 
Once EAD used Makes H1B Void??????

Hi Ginnu,

** If you are on H1 then file H4 extension again for your spouse if her I-94 is not expired with correct documents (you know what was the RFE and send the complete documents she can get H4 extended.
/***************************************************/
/************************************************/
if Primary H1B Holder used EAD , Can He use H1B again.???
/*************************************************/
If primary H1 holder used EAD then you cannot file for her H4, as you are NOT on H1 status??????
/********************************************/
Little bit confused abt above statment.

My i485 is pending > 1 year, Has EAD , H1B for back up(if something goes wrong in i 485).

After 180 days i have used my EAD with another consulting
company (Not my GC sponser) for 1.5 months for an Project.

Then i got long term project through my GC Sponsering consulting
company. Now I am working through H1B.

I have used EAD & H1B Back & forth. Who said Once EAD is Used
, h1B becomes void. Also I am applying for H1B 7th Yr Extension.

- SANK
 
If the primary applicant used EAD to work for another job, then he/she looses H1 status, hence the spouse cannot be on H4 status.

How did you change back to H1 status after using EAD for 1.5 months? Did your previous H1 petitioning company applied for a new H1 for you, or applied for an H1 extention for you?

Please check with a lawyer, because you might not be on H1 status and will be requiring an EAD to work.

You might want to read this article carefully: http://www.murthy.com/UDnewins.html
 
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