Very Very Urgent!!!!!

[MS99]

My wife was on J2 and her company applied for her H1 before the J2 expired.AFTER the J-2 expired, but before the H1 got approved,the employer withdrew the I-129.she immediately filed I-539 for COS to H4.Long after she filed the COS, the INS sent a letter saying that the I-129 is now closed as it was withdrawn.

However, about a week back, the INS denied the H4 saying that she was " out of status".

The point to be noted is that, there was a petition always pending at the INS throughout this whole duration.

The attorney feels that it has been wrongly denied by the INS.
and says that he can file either ' motion to reopen' or that she can go to India and get H4 there at the consulate.

Has anyone faced this kind of problem?

What are the advantages and disadvantages of both options: file ' motion to reopen' or go to India.

If ' motion to reopen' is filed, does any one have any idea how long it may take?

Since there is no guarantee that we will succeed, if you feel that it is better to apply at a consulate in India, how much time does she have to leave this country.

Any likely problems for her getting her H4 approved in India and later on, in returning to the US?

We are very tensed up and would really appreciate any replies.

Thanks

 

[jaxen]

Possible risks

Sorry. When I posted a detailed reply earlier today the server went down. Will try to repeat what I said earlier.

First off, when did you get your h1 approval? If it was after J2 expiry then there might be a potential out of status possibility for your wife. Please discuss this option thoroughly with your lawyer.

Regarding MTR or consulate here is my take:
The 2 Qs that indian consulate will ask are
1. Why did you not file motion to reopen?
2. What will prevent her from once again going for h1 once she is in H4?

You need to have good answers for these 2 (possible) questions before deciding to go for the consulate option. Of course, if my earlier surmise was right you have only consulate option.

If the lawyer is convinced that there is no potential out of status issue, my vote will be for MTR.
However please keep in mind that both INS and DOS (consulate) subject to close scrutiny a case where an applicant has tried many visas, just to be in the US. So she needs a strong reason for why she wants to be in US (you and family if any).

Hope this opinion gives you more info. and enables you to make an informed decision.

 

[MIO]

Hi,
My husband had the same situation.
One year ago I applied for H1B and my husband applied for H4.
I got my visa 6 month ago, but my husband didn't get any, because INS lost our merriage sertificate. Our lawyer sent them anothr one, but they told they didn't receive anything. After they denied our lawyer sent appilation and another application for getting H4 based on my visa H1B. And only now(one year after his previous visa expired ) he got his H4.
MIO

 

[MS99]

Another question jaxen

First let me thank you and MIO for having replied.

jaxen, I got my H1 B approved before my J1 expired.

Since my wife's company applied for her H1B, she did not file for her H4 along with me.After they told her that they are going to withdraw her H1B petition from the INS, we immediately filed for her H4 on the basis of my H1.

jaxen I would really appreciate if you can please give me your email so that i can email you all the exact dates so, you will have very clear idea of the whole situation.

Thanks

 

[jaxen]

Seems OK

As I said in the previous post U need to have those answers. If you are ok with the dates that is fine.
It is upto your convenience and confidence level to decide on MTR or consular processing. As MIO suggests , a mere MTR might fix the problem.