Urgent: H-4 expired, Filed I-485

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unc7uth

Registered Users (C)
Hi All,

I need some advice from people on this forum.

I applied for I-140 EB1 and got it approved on March'2011.

During this time, my H-1 in Jan-2011 was extended. Unfortunately, lawyer forgot to extend H-4 of my wife and her I-94 and H-4 visa expired on Jan 9th 2011. We detected this in April while filing I-485 for my wife.

At this point, one option was that we could have gone outside USA and tried to get H-4 stamping for her. Lawyers suggested that violation is less then 180 days and hence, She will not have problem in I-485 approval and they would use 245(k) clause. Also, lawyers said if H-4 stamping in home country is denied she cannot come back to USA and I-485 filing cannot be done as it need her to be in USA.

Lawyers went ahead and filed for I-485 for me and my wife and also filed EAD for my wife. We have received the receipts for same.

Now, my question is :

Should I go ahead and file H-4 extension using nunc-pro-tunc (NPT) (legal term in Latin, meaning "now for then").

A/to lawyers, this is not needed as she will get Green card and her I-485 will go through. Also, they are saying that with nunc-pro-tunc based H-4,
USCIS may require my wife to go back and get her H-4 stamping done.

I am just worried that if I-485 is denied, it will be more then 180 days violation. So, in that case, it may be better to get H-4 stamping or at least file nunc-pro-tunc and get back in status.

I would really appreciate if you could give information and share your experiences in this matter.

Regards,
VS
 
unc7uth said:
Hi All,

I need some advice from people on this forum.

I applied for I-140 EB1 and got it approved on March'2011.

During this time, my H-1 in Jan-2011 was extended. Unfortunately, lawyer forgot to extend H-4 of my wife and her I-94 and H-4 visa expired on Jan 9th 2011. We detected this in April while filing I-485 for my wife.

At this point, one option was that we could have gone outside USA and tried to get H-4 stamping for her.
Lawyers suggested that violation is less then 180 days and hence, She will not have problem in I-485 approval and they would use 245(k) clause.
--Lawyer is correct
Also, lawyers said if H-4 stamping in home country is denied she cannot come back to USA and I-485 filing cannot be done as it need her to be in USA.
-----------Lawyer is correct
Lawyers went ahead and filed for I-485 for me and my wife and also filed EAD for my wife. We have received the receipts for same.

Now, my question is :

Should I go ahead and file H-4 extension using nunc-pro-tunc (NPT) (legal term in Latin, meaning "now for then").

A/to lawyers, this is not needed as she will get Green card and her I-485 will go through. Also, they are saying that with nunc-pro-tunc based H-4,
USCIS may require my wife to go back and get her H-4 stamping done.
-------------- Lawyer is correct. if her I-485 is filed then she can stay in US

I am just worried that if I-485 is denied, it will be more then 180 days violation. So, in that case, it may be better to get H-4 stamping or at least file nunc-pro-tunc and get back in status.
-------Why do you think her I-485 will be denied? if she wish she can file H4 extension with nunc-pro-tunc and if her H4 gets approved and she wants to go out of US for H4 Visa stamping then apply AP for Her and she should get her AP approved while in US so that if her H4 Visa stamp gets rejected then she can use AP to enter US
I would really appreciate if you could give information and share your experiences in this matter.

Regards,
VS
Click to expand...
You have good lawyer and follow his advice.
 
Thanks a lot for your response.

I am not worried that her I-485 will be denied as she was out of status for less then 180 days. But, I do not want her violation to exceed 180 days just in case I-485 is denied even if the chances for that are less. if I-485 is denied, this period when she is in US on I-485 filed will not be considered as legal status.

Just to clarify, Is her status legal in USA with I-485 filed even with H-4/i-94 expired ?

If we file H-4 extension with nunc-pro-tunc, then she does not need to go to get stamping right (as I presume she would get a new I-94). Please correct me if I am wrong here.

Then question is: Does H-4 extension with nunc-pro-tunc usually approved ?

My lawyers are not sure that the late extension using nunc-pr-tunc will be successful and runs the risk of USCIS requiring my wife return to India to apply for an H-4 visa stamp.

Has anyone else had similar problem ? and if you have experience of filing nunc-pro-tunc, I would like to get some more inputs on creating the letter/

Thanks again,
VS
 
2290369 said:
Can filing extension (while I-485 is pending) using nunc-pro-tunc force her to return to India to apply for an H-4 visa stamp.
Click to expand...

If so, I would try to avoid it and wait to see if I-485 +245K works or not ?
 
unc7uth said:
Thanks a lot for your response.

I am not worried that her I-485 will be denied as she was out of status for less then 180 days. But, I do not want her violation to exceed 180 days just in case I-485 is denied even if the chances for that are less. if I-485 is denied, this period when she is in US on I-485 filed will not be considered as legal status.

Just to clarify, Is her status legal in USA with I-485 filed even with H-4/i-94 expired ?
-------------------- Yes. Her status is AOS Pending or Pending adjustment of status
If we file H-4 extension with nunc-pro-tunc, then she does not need to go to get stamping right (as I presume she would get a new I-94). Please correct me if I am wrong here.
--------------if they approve her H4 extension then she will get I-94 attached with H4 extension approval.
Then question is:
Does H-4 extension with nunc-pro-tunc usually approved ?
--- depends on the lawyer who draft the cover letter and the officer who gets the file.

My lawyers are not sure that the late extension using nunc-pr-tunc will be successful and runs the risk of USCIS requiring my wife return to India to apply for an H-4 visa stamp.
----------------If USCIS approve H4 extension then her H4 approval will be having I-94 attached and USCIS is NOT going to force her to go out of US to get H4 Visa. She has her I-485 pending and she can stay in US.

Has anyone else had similar problem ? and if you have experience of filing nunc-pro-tunc, I would like to get some more inputs on creating the letter/

Thanks again,
VS
Click to expand...
I don't see the need of filing H4 extension as her I-485 is filed. She should get EAD(if she wants to work)and get AP if she wants to go out of US.
 
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