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  #1  
Old 11-17-2008, 11:28 PM
gc4me gc4me is offline
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Default I-485 RFE; Please help

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.
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  #2  
Old 11-17-2008, 11:54 PM
rajeev_74 rajeev_74 is offline
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Default I think you are ok...

because she left the country and renetered....I believe illegal stay is counted since your last entry.
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  #3  
Old 11-18-2008, 02:05 AM
lord_labaku lord_labaku is offline
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Default

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.
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  #4  
Old 11-18-2008, 09:41 AM
TexDBoy TexDBoy is offline
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Default

Quote:
Originally Posted by rajeev_74 View Post
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
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  #5  
Old 11-18-2008, 11:35 AM
pbojja pbojja is offline
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Default Lawyer

Quote:
Originally Posted by gc4me View Post
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.
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  #6  
Old 11-18-2008, 12:10 PM
gc4me gc4me is offline
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Default

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.
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  #7  
Old 11-18-2008, 01:06 PM
Jitamitra Jitamitra is offline
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You can invoke 245(k).
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  #8  
Old 11-18-2008, 01:18 PM
desi3933 desi3933 is offline
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Default

Quote:
Originally Posted by gc4me View Post

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.


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  #9  
Old 11-19-2008, 10:07 AM
gc4me gc4me is offline
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Default

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.


Quote:
Originally Posted by desi3933 View Post
Did she get new I-94 attached with approval notice in 2004? A lot depends on this answer.


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  #10  
Old 11-19-2008, 10:21 AM
gc4me gc4me is offline
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Default

Would you please tell me more about 245(k).

Quote:
Originally Posted by Jitamitra View Post
You can invoke 245(k).
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Last edited by gc4me; 11-19-2008 at 01:50 PM.
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  #11  
Old 11-19-2008, 10:33 AM
GCOP GCOP is offline
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Default

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.

Quote:
Originally Posted by gc4me View Post
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.
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  #12  
Old 11-19-2008, 10:48 AM
gc4me gc4me is offline
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Default

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.

Quote:
Originally Posted by GCOP View Post
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.
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  #13  
Old 11-19-2008, 11:19 AM
gc4me gc4me is offline
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Default

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.


Quote:
Originally Posted by Jitamitra View Post
You can invoke 245(k).
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  #14  
Old 11-19-2008, 11:53 AM
glus glus is offline
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Default

Quote:
Originally Posted by gc4me View Post
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,
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  #15  
Old 11-19-2008, 11:56 AM
glus glus is offline
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Quote:
Originally Posted by gc4me View Post
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,
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