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gc4me
11-17-2008, 11:28 PM
I got the RFE at last. I invoked AC21. The RFE for me to Provide my wife's non-immigrant status between Feb 2003 to Jan 2004.

I don't know what do. Looks like we are doomed. My wife came here with H4 in 2000, was provided I-94 from the airport
for 3 years (till Jan 2003), we didn't know then that we have to file a I-539 extension for H4 extension (even two
of my friends told me the same then). We knew that as long as I am on H1, she would maintain H4. I came to know in Jan 2004
and then we applied for I-539 and she was issued a new 3 year H4. I know this is stupid but that what happened. Anybody has any experience please reply..please please. We are really sleepless this time.

For more information, we went to visit our home country and re-entered from JFK with no issue twice using AP. We got H4 tranfered, EAD advanced Payrole too with no issue al all.

Looks like "nunc pro tunc" is the solution according to Murthy.
Anybody has experience with "nunc pro tunc" please post your experience. http://www.murthy.com/news/n_nunpro.html

My then company did not tell us anything. When I first came to know, the same day I told my company's attorney to file I-539 for her. That is in 2004 January. And it was aproved with out any issue. At that time USCIS did not even ask us why she did not have I-539 approval between 2003 Feb to Jan 2004.

She travled in 2007 and in 2008 with AP. Now after 8 years of journey, we are learning that she will not get gc for the mistake not being informed by our emloyer! This totally heart breaking.

Even all attorney's are saying the same. can not be done much about it. This is quite radiculas!
If anybody has any experience with such type of case, please come forward and post it. I wil relally appreciate all those people who has posted ther reply. Thanks everyone.

rajeev_74
11-17-2008, 11:54 PM
because she left the country and renetered....I believe illegal stay is counted since your last entry.

lord_labaku
11-18-2008, 02:05 AM
I went through this before. Albeit before we started our GC process. What we did was a little different. In our case too our attorney screwed up.. didnt renew my wifes H4. The way we resolved it was different.... we petitioned USCIS to backdate my wifes renewed H4 so that it wouldnt be counted against her during the GC process(the attorney since it was their mistake did all the paperwork for free)

In your case, its a little different since it was a few years ago & USCIS already issued renewed H4.

Good luck. An experienced attorney should sort it out. dont worry. the greater the difficulty...the greater the victory.

TexDBoy
11-18-2008, 09:41 AM
because she left the country and renetered....I believe illegal stay is counted since your last entry.

If you enter using AP, that is not counted as last entry ... it is only for other type of status such as H1B

pbojja
11-18-2008, 11:35 AM
I got the RFE at last. I invoked AC21. The RFE for me to Provide my wife's non-immigrant status between Feb 2003 to Jan 2004.

I don't know what do. Looks like we are doomed. My wife came here with H4 in 2000, was provided I-94 from the airport
for 3 years (till Jan 2003), we didn't know then that we have to file a I-539 extension for H4 extension (even two
of my friends told me the same then). We knew that as long as I am on H1, she would maintain H4. I came to know in Jan 2004
and then we applied for I-539 and she was issued a new 3 year H4. I know this is stupid but that what happened. Anybody has any experience please reply..please please. We are really sleepless this time.



Sorry you are in this situation . Hire a good lawyer they can prepare a good cover letter explaning your case ..Yes there is a rule that if you reentered after staying illegally(or unknowingly) then its voided but only lawyer can help you preparing the required paper work.

gc4me
11-18-2008, 12:10 PM
Thanks all of you for youe responses.
The attorney and me are trying put together a csae. But looks like it came down to the IOs wish.
If my attorney/s would tell me this earlier, it would have been easy and filing a nunc pro tunc would easily solve th eissue. Now it is too late. Someone suggested me to file a I-824 to change for CP from Adjustment of Status.

Jitamitra
11-18-2008, 01:06 PM
You can invoke 245(k).

desi3933
11-18-2008, 01:18 PM
I came to know in Jan 2004 and then we applied for I-539 and she was issued a new 3 year H4



Did she get new I-94 attached with approval notice in 2004? A lot depends on this answer.


___________________________________
Proud Indian-American and Legal Immigrant

gc4me
11-19-2008, 10:07 AM
Yes. She got new I-94 in her H4 approval in January 2004.
Also with her H4 extension in 2006 which is valid till 2009 march.

But she visited and came back after filing our I-485 as parolee.


Did she get new I-94 attached with approval notice in 2004? A lot depends on this answer.


___________________________________
Proud Indian-American and Legal Immigrant

gc4me
11-19-2008, 10:21 AM
Would you please tell me more about 245(k).

You can invoke 245(k).

GCOP
11-19-2008, 10:33 AM
This is what I believe, once somebody leaves and re-enters the country. USCIS looks the status for the period between last entry and the Filing of Adjustment of status. There is a USCIS memo about this. Check with your attorney please. If this is true, your wife re-entered in US in 2007 and After that your wife would have filed in July 2007 (Assuming that is the case) then it should be fine.

I got the RFE at last. I invoked AC21. The RFE for me to Provide my wife's non-immigrant status between Feb 2003 to Jan 2004.

I don't know what do. Looks like we are doomed. My wife came here with H4 in 2000, was provided I-94 from the airport
for 3 years (till Jan 2003), we didn't know then that we have to file a I-539 extension for H4 extension (even two
of my friends told me the same then). We knew that as long as I am on H1, she would maintain H4. I came to know in Jan 2004
and then we applied for I-539 and she was issued a new 3 year H4. I know this is stupid but that what happened. Anybody has any experience please reply..please please. We are really sleepless this time.

For more information, we went to visit our home country and re-entered from JFK with no issue twice using AP. We got H4 tranfered, EAD advanced Payrole too with no issue al all.

Looks like "nunc pro tunc" is the solution according to Murthy.
Anybody has experience with "nunc pro tunc" please post your experience. http://www.murthy.com/news/n_nunpro.html

My then company did not tell us anything. When I first came to know, the same day I told my company's attorney to file I-539 for her. That is in 2004 January. And it was aproved with out any issue. At that time USCIS did not even ask us why she did not have I-539 approval between 2003 Feb to Jan 2004.

She travled in 2007 and in 2008 with AP. Now after 8 years of journey, we are learning that she will not get gc for the mistake not being informed by our emloyer! This totally heart breaking.

Even all attorney's are saying the same. can not be done much about it. This is quite radiculas!
If anybody has any experience with such type of case, please come forward and post it. I wil relally appreciate all those people who has posted ther reply. Thanks everyone.

gc4me
11-19-2008, 10:48 AM
Unfortunately, before filing I-485 she never re-entered with H4 due to several reason. 2003 January we send our passport to state department for stamping. We paned to visit after we get passport back with visa stamped. We waited till April then I (everyone from my country) was told to appear in front of an IO with our passport with before April end without any exception. So we withdrew our passport. Then we were re-planning ...then she was pregnant and then my daughter was too young to fly etc.

This is what I believe, once somebody leaves and re-enters the country. USCIS looks the status for the period between last entry and the Filing of Adjustment of status. There is a USCIS memo about this. Check with your attorney please. If this is true, your wife re-entered in US in 2007 and After that your wife would have filed in July 2007 (Assuming that is the case) then it should be fine.

gc4me
11-19-2008, 11:19 AM
Looks like 245(k) is not an option.
Persons with a petition or LC filed after January 14, 1998, up to April 30, 2001 must also document that they were "physically present" in the U.S. as of December 21, 2000.


You can invoke 245(k).

glus
11-19-2008, 11:53 AM
I got the RFE at last. I invoked AC21. The RFE for me to Provide my wife's non-immigrant status between Feb 2003 to Jan 2004.

I don't know what do. Looks like we are doomed. My wife came here with H4 in 2000, was provided I-94 from the airport
for 3 years (till Jan 2003), we didn't know then that we have to file a I-539 extension for H4 extension (even two
of my friends told me the same then). We knew that as long as I am on H1, she would maintain H4. I came to know in Jan 2004
and then we applied for I-539 and she was issued a new 3 year H4. I know this is stupid but that what happened. Anybody has any experience please reply..please please. We are really sleepless this time.

For more information, we went to visit our home country and re-entered from JFK with no issue twice using AP. We got H4 tranfered, EAD advanced Payrole too with no issue al all.

Looks like "nunc pro tunc" is the solution according to Murthy.
Anybody has experience with "nunc pro tunc" please post your experience. http://www.murthy.com/news/n_nunpro.html

My then company did not tell us anything. When I first came to know, the same day I told my company's attorney to file I-539 for her. That is in 2004 January. And it was aproved with out any issue. At that time USCIS did not even ask us why she did not have I-539 approval between 2003 Feb to Jan 2004.

She travled in 2007 and in 2008 with AP. Now after 8 years of journey, we are learning that she will not get gc for the mistake not being informed by our emloyer! This totally heart breaking.

Even all attorney's are saying the same. can not be done much about it. This is quite radiculas!
If anybody has any experience with such type of case, please come forward and post it. I wil relally appreciate all those people who has posted ther reply. Thanks everyone.

Hello:
Well, that appears to be a problem. Your wife was technically out-of-status from January 2003 to January 2004. So, you cannot invoke 245(k) as this only covers up to 180 days of out-of-status. Now, it really does not matter that USCIS granted her extension of stay later on. Unless she had a valid I-94 at all times (meaning from her last entry to the U.S. to the date her I485 was filed), they can not normally approve her I485 unless she satisfies 245(i). They could only if she was out-of-status for max. 180days. If she re-entered after I485 was pending would not help neither. This is because USCIS by law, must look for maintenance of non immigrant status from the date of last entry to the U.S., to the date the I485 was filed. It appears like USCIS has noticed she was not in-status in the period of Jan 2003 to Jan 2004, and that is why they are asking to show she was in-status. I am not sure if nunc pro tunc would work in this case as she had left and came back to the U.S. not using the same non-immigrant status.
The points to make are as follows:
-the fact she re-entered after applying for I-485, don't cure the status lapse.
-if you cannot show she had a valid I-94 between Jan 2003 and Jan 2004, she will appear as out-of-status
-if she can get a new h-4 visa and re-enter, you could re-apply for her I485 once your PD is current again.
-most importantly - try to contact a Good Immigration attorney to try to deal with this. You can e-mail me in private and I can recommend an attorney.

Best wishes,

glus
11-19-2008, 11:56 AM
Looks like 245(k) is not an option.
Persons with a petition or LC filed after January 14, 1998, up to April 30, 2001 must also document that they were "physically present" in the U.S. as of December 21, 2000.

Hi GC4Me:
I think you are referring to 245(i), which does what you wrote above. 245(k), on the other hand, allows to adjust status even if a person sponsored through employment (or spouse of such a person) had been unlawfully present, or out of status in the U.S. for a period of less than 180 days between last entry to the u.s. and application for adjustment of status.

Regards,

GCOP
11-19-2008, 01:02 PM
Discuss with your attorney. I hope, Something will work out for you. Good Luck.

Unfortunately, before filing I-485 she never re-entered with H4 due to several reason. 2003 January we send our passport to state department for stamping. We paned to visit after we get passport back with visa stamped. We waited till April then I (everyone from my country) was told to appear in front of an IO with our passport with before April end without any exception. So we withdrew our passport. Then we were re-planning ...then she was pregnant and then my daughter was too young to fly etc.

gc4me
11-19-2008, 05:00 PM
I found one person whose wife's H4 was not renewed as because he did not know about it. She did not have a valid I-94 for 8 months. Then she went back for H4 stamping and she was stamped with no issue.

Can we go to Canada for H1 and H4 stamping and apply for a new I-485 for my wife. My PD is current. As I have invoked AC21, I will transfer my H1/H4 with the new employer with premium process and go for stamping. Can we file a new I-485 when another I-485 is pending for my wife? My PD is current.

Jitamitra
11-19-2008, 09:03 PM
Hi GC4Me:
I think you are referring to 245(i), which does what you wrote above. 245(k), on the other hand, allows to adjust status even if a person sponsored through employment (or spouse of such a person) had been unlawfully present, or out of status in the U.S. for a period of less than 180 days between last entry to the u.s. and application for adjustment of status.

Regards,

If you look at the technicality of the 245(k) specification, you shouldnt be out of status for more than 180 days from the last entry with valid I-94. So practically speaking if someone never went out with expired H4 and stayed in US for period of more than 180 days and applied 485, it's a problem.

However, if you go out and come back in with a non-immigrant status, the counter resets for 245(k). I am not a attorney, but please check with a good attorney.

gc4me
11-19-2008, 09:59 PM
Can we file another I-485 for my wife when one I-485 is pending? PD is current.

glus
11-20-2008, 01:08 PM
I found one person whose wife's H4 was not renewed as because he did not know about it. She did not have a valid I-94 for 8 months. Then she went back for H4 stamping and she was stamped with no issue.

Can we go to Canada for H1 and H4 stamping and apply for a new I-485 for my wife. My PD is current. As I have invoked AC21, I will transfer my H1/H4 with the new employer with premium process and go for stamping. Can we file a new I-485 when another I-485 is pending for my wife? My PD is current.


Yes, assuming she receives H-4, and re-enters U.S. on H-4, she will be able to apply for new I485 once she re-enters and if your PD is current. However, be verrrry careful. Speak to an experienced attorney before leaving the U.S. Why? If the USCIS learns she was her illegally for over 180 days (out of status) a 3-year re-entry bar may kick in. Please please please, speak to goood attorney before doing anything.

Google 3-year reentry bar or 10 year reentry bar.

glus
11-20-2008, 01:27 PM
If you look at the technicality of the 245(k) specification, you shouldnt be out of status for more than 180 days from the last entry with valid I-94. So practically speaking if someone never went out with expired H4 and stayed in US for period of more than 180 days and applied 485, it's a problem.

However, if you go out and come back in with a non-immigrant status, the counter resets for 245(k). I am not a attorney, but please check with a good attorney.

Hi Jitamitra,
Yes, you are correct. However, please read my previous post. This is just a word of caution. Thank you.

desi3933
11-20-2008, 03:35 PM
Looks like 245(k) is not an option.
Persons with a petition or LC filed after January 14, 1998, up to April 30, 2001 must also document that they were "physically present" in the U.S. as of December 21, 2000.


You are mixing 245(i) with 245(k).

Anyway, 245(k) does not apply in this case as number of out-of-status days > 180 calendar days.

desi3933
11-20-2008, 03:39 PM
Yes. She got new I-94 in her H4 approval in January 2004.
Also with her H4 extension in 2006 which is valid till 2009 march.

But she visited and came back after filing our I-485 as parolee.

That is a very good news. I think you should be ok.

Since her extension of H4 status was approved with I-94, this means USCIS has waived her out-of-status record. You attorney should be able to respond RFE with the details of H4 extension. You need an experienced attorney who understands that out-of-status is forgiven when extension/change of status is approved with new I-94.

Good Luck.


*** I am not an attorney and this is not a legal advice. ***


____________________________________
Proud Indian-American and Legal Immigrant

gc4me
01-04-2009, 07:28 PM
Start of a new year could not be better! What a start!!!!!!!!!!!!!
I got COP email for me and my wife's I-485. It was approved on January 2nd. 1st business day of the year! WOW!

It had been an uphill battle. I am extremely pleased to have an happy ending. Thanks to IV and all its members. Hope that everyone gets it soon.
I invoked AC21 and got RFE regarding AC12.

I personally thank JitaMitra who first educated about 245(k).

MAY GOD HELP US ALL!

kumarr
01-04-2009, 08:01 PM
Good for you. Congrats!

clear485
01-05-2009, 12:26 PM
Start of a new year could not be better! Wahat a start!!!!!!!!!!!!!
I got COP email for me and my wife's I-485. It was approved on January 2nd. 1st business day of the year! WOW!

It had been an uphill battle. I am extremely pleased to have an happy ending. Thanks to IV and all its members. Hope that everyone gets it soon.
I invoked AC21 and got RFE regarding AC12.

I personally thank JitaMitra who first educated about 245(k).

MAY GOD HELP US ALL!

Congratulations !!!

So what was your/attorney response for 1 year out-of-status RFE for your wife. Did you provide any document or more information to USCIS reg this

gc4me
01-05-2009, 01:48 PM
We prepared case following 245(k) memo.
According to 245(k), for EB emigrants, if the out of status (for more than 180 days) is not the applicant's fault, then it can be exempted.

Congratulations !!!

So what was your/attorney response for 1 year out-of-status RFE for your wife. Did you provide any document or more information to USCIS reg this

clear485
01-05-2009, 03:48 PM
We prepared case following 245(k) memo.
According to 245(k), for EB emigrants, if the out of status (for more than 180 days) is not the applicant's fault, then it can be exempted.

Thank you....

I thought it can apply only if out-of-status < 180 days....

So we can invoke 245(K) even if we stay out-of-status morethan 180 days and don't have mistake from applicant's side....

gc4me
01-05-2009, 04:11 PM
< 180 days is always exempted. No need to show/provide anything, I guess.
245(k) has exemption for > 180 days if you can prove that the gap is not applicant's fault.


Thank you....

I thought it can apply only if out-of-status < 180 days....

So we can invoke 245(K) even if we stay out-of-status morethan 180 days and don't have mistake from applicant's side....

asrinuone
01-05-2009, 05:10 PM
Start of a new year could not be better! What a start!!!!!!!!!!!!!
I got COP email for me and my wife's I-485. It was approved on January 2nd. 1st business day of the year! WOW!

It had been an uphill battle. I am extremely pleased to have an happy ending. Thanks to IV and all its members. Hope that everyone gets it soon.
I invoked AC21 and got RFE regarding AC12.

I personally thank JitaMitra who first educated about 245(k).

MAY GOD HELP US ALL!

I'am very very happy to see your story end with Happyness man, Please educate all the EB floks around you about not forgettign their spouses H4 status. Any how, it is very very suspense for me, prayed too, I'm happier than you too know u got GC. Stay happy and Take care.

maddipati1
01-05-2009, 09:43 PM
< 180 days is always exempted. No need to show/provide anything, I guess.
245(k) has exemption for > 180 days if you can prove that the gap is not applicant's fault.

congrats gc4me, happy for you. njoy.

but, how did u prove that >180 days is not applicant's fault. i mean how RFE response was worded to support that.

can you pl. post the RFE response letter from you (ommit all the personal info), if possible.

thx

gc4me
01-05-2009, 10:40 PM
As soon as we got the rfe, we applied a nunc pro tunc I-539 to obtain back dated I-94 for the time gap. So that you will have the receipt # ready before replying the rfe.

And wrote an affidavit mainly explaining that then company and it's attorney did not inform us anything about H4. My H1 was expiring with then company on Oct 14th 2003 but they filed my extension on 9th Oct which proves the company's irresponsibility etc. Also our original passports were with the state department for stamping for 5 months (Dec to May, 2003) which was another reason. We attached the nunc-pro-tunc I-539 receipt with the rfe. Please pm me if you want more info, I will provide my phone #.




congrats gc4me, happy for you. njoy.

but, how did u prove that >180 days is not applicant's fault. i mean how RFE response was worded to support that.

can you pl. post the RFE response letter from you (ommit all the personal info), if possible.

thx