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Out of status, employment gap and status revalidation Gap in employment(paystubs) and the resulting problems during status transfer and green card filing.

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  #1  
Old 11-02-2007, 12:08 AM
Medam.anil Medam.anil is offline
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Default I-94 Out of status when H1 is pending

Hello,
My wife was in H4 visa and her I-94 expired on Oct 10th 2007. We applied for H1b in this year quota on April, but this case is pending due to Query(RFE), since H1 case is pendng I was told that I should not apply for H4 extension, so didn't apply for the same. Now again someone told that she will go out of status. So can someone suggest me whether I shd apply for H4 extension without waiting for H1 decision? or should I apply for extension based on the H1 decision?If so within how many days I should apply for extension.


Thanks.
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  #2  
Old 11-02-2007, 10:13 AM
reachinus reachinus is offline
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Default Its going to be a problem...

Hi There,
I think your wife is illegal in this country now. You should have applied for the H4 along with the H1. Consult your atty immediately and file for the H4 along with a good cover letter. Hope this helps. But file it ASAP since she is illegal and not just out of status now.
Out of Status means an H1 holder not working or getting paid or and H4 holder working when the I-94 is valid.
Illegal means your authorized stay in US/ I-94 has expired.
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  #3  
Old 11-02-2007, 11:00 AM
waitin_toolong waitin_toolong is offline
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Not true, as long as her COS is pending she is legal, but can have issues if the H1 gets denied.
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  #4  
Old 11-02-2007, 11:19 AM
saurav_4096 saurav_4096 is offline
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Originally Posted by reachinus View Post
Hi There,
I think your wife is illegal in this country now...
Out of status does not mean illegal
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  #5  
Old 11-02-2007, 11:33 AM
BMS1 BMS1 is offline
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There are many questions here. First you need to correct the expired I-94 situation. Why did you let I-94 expire? Do you have any valid reason for that? If so, there is a concept called Nunc pro tunc to correct situations like this with retrospective effect. You should discuss this with your lawyer. Search Murthy.com who has claimed success for some H4 cases who "forgot" to extend their H4 status along with their spouse's H1-B extension. So it is doable with a good lawyer and with a good reason.
Then the RFE on H1-B. How comfortable are you that you will get through the H1-B approval?
Without details no one can say much about your situation. Hopefully you have access to a good lawyer who may be able to help.
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  #6  
Old 11-02-2007, 12:31 PM
reachinus reachinus is offline
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Quote:
Originally Posted by waitin_toolong View Post
Not true, as long as her COS is pending she is legal, but can have issues if the H1 gets denied.
Its not ture if the H1 is being filed for his wife. But if the H1 was filed for his extension then sure its true. He should have field for the H4 extension as the same time of his H1 extension filing.
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  #7  
Old 11-02-2007, 12:33 PM
reachinus reachinus is offline
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Default yes it does i suppose

Quote:
Originally Posted by saurav_4096 View Post
Out of status does not mean illegal
If your I-94 is expired then your authorzied stay is over. There is an article in Murthy.com website where is states the diff between both. I may also be wrong saying that you are illegal if you i-94 is expired, but i think i am correct.
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  #8  
Old 11-02-2007, 12:35 PM
reachinus reachinus is offline
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Default whose H1 is it...

Quote:
Originally Posted by Medam.anil View Post
Hello,
My wife was in H4 visa and her I-94 expired on Oct 10th 2007. We applied for H1b in this year quota on April, but this case is pending due to Query(RFE), since H1 case is pendng I was told that I should not apply for H4 extension, so didn't apply for the same. Now again someone told that she will go out of status. So can someone suggest me whether I shd apply for H4 extension without waiting for H1 decision? or should I apply for extension based on the H1 decision?If so within how many days I should apply for extension.


Thanks.
To answer your question u should tell if the H1 is pending for you or your wife.
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  #9  
Old 11-03-2007, 02:48 AM
sonu_Aug_2002 sonu_Aug_2002 is offline
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Default Hope this helps

google for 240days rule.
  • If you have applied for H1B extension sufficiently before Ur current H1B is expired (I94 expiration), then U can continue to work with Ur employer for 240 days from the day Ur I94 expires. Important to note that it is 240 days from Ur I94 expiration date not from the H1B Extension filing date.Even after the 240 days, U can stay but cannot work for the employer on the basis of H1B Extension pending. In your case since your I485 is pending, you can always work using your EAD.
  • Regarding Ur wife, if U have already filed the I485 she is already in pending Adjsutment Status. So, no problem. But she will have to go out of USA and come back on H4 as extension of status will not approved once U don't file extension before the current I94 is expired. Your wife status is absolutely OK in this way.
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  #10  
Old 11-03-2007, 10:40 AM
waitin_toolong waitin_toolong is offline
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The 240 days rule applied to work authorization expiration, that means you are no longer authorized to work, it does not mean that you are out of status, since hers is COS from H4 to H1 she is not working anyways, and is legal till a decision comes.

I knew someone was going to bring up the 240 day rule. Maybe I should have addressed it originally.
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  #11  
Old 11-04-2007, 12:31 AM
rockets12345 rockets12345 is offline
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Default

Hi,

Actually I forgot to apply for my wife's H4 extension and only came to know 3 weeks after her H4 expiration. We applied for extension approximately month late but with a valid reason and it was approved.

I also know a friend of mine who's colleague actually forgot to extend his H1 and came to know 3 months later after the expiration. He applied for extension 3 months late and the reason he provided was he oversaw the expiration date and basically forgot. He too got his H1 extension approved.

So I think if there are some genuine reasons USCIS do consider it. So go ahead and apply for extension ASAP and hope for the best I am sure it will be fine.

Hope it helps.
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  #12  
Old 11-05-2007, 01:51 PM
wandmaker wandmaker is offline
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rockets12345 is correct - USCIS will approve H4, if you provide them with genuine reason. Good luck.
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  #13  
Old 11-12-2007, 01:29 PM
emscort emscort is offline
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Default Out of status but reinstated can I travel

Hi I'm new to this forum, I'm H4 visa whe we came here in US. When My husband transfer to another company the company lawyer didn't apply for our extension. We just found out when I'm renewing my drivers license that I'm out of status. We applied and the immigration grant us the extension. My problem now is we are planning to go back to my home country I have a valid H4 approval with I94 attached that will expired Dec 2009. We also apply for I485 still pending but have EAD approved, we already did our finger printing Oct.19. My lawyer said that because of the gap on our status we might not granted a permanent residency and theres gonna be problem going back. Before he said there no problem going back that why I bought ticket for whole family to go back to attend 50th wed of my parents, but last he week he e-mailed and his advice is not to go back. I'm very disappointed specially my kids please advice I don't know what to do.
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  #14  
Old 11-22-2007, 11:50 PM
abhatti abhatti is offline
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Default I have the same situation

Quote:
Originally Posted by emscort View Post
Hi I'm new to this forum, I'm H4 visa whe we came here in US. When My husband transfer to another company the company lawyer didn't apply for our extension. We just found out when I'm renewing my drivers license that I'm out of status. We applied and the immigration grant us the extension. My problem now is we are planning to go back to my home country I have a valid H4 approval with I94 attached that will expired Dec 2009. We also apply for I485 still pending but have EAD approved, we already did our finger printing Oct.19. My lawyer said that because of the gap on our status we might not granted a permanent residency and theres gonna be problem going back. Before he said there no problem going back that why I bought ticket for whole family to go back to attend 50th wed of my parents, but last he week he e-mailed and his advice is not to go back. I'm very disappointed specially my kids please advice I don't know what to do.
I have the same situation except that I have still not applied for my wife's I-94 extension. My lawyer said its not going to serve any purpose. he added that she can not travel, as she will be stopped on her way back, once that happend she will not be able to enter the US for the next three years.
I will be interested to find out what happens on your case. Please post.
My wife's I-94/H4 expired on April 8 2007, and we applied for I-485 on July 2nd 2007. which means she is legal but for of being out of status she may not be allowed to enter the US.
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Old 11-25-2007, 10:55 PM
wandmaker wandmaker is offline
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Quote:
Originally Posted by abhatti View Post
I have the same situation except that I have still not applied for my wife's I-94 extension. My lawyer said its not going to serve any purpose. he added that she can not travel, as she will be stopped on her way back, once that happend she will not be able to enter the US for the next three years.
I will be interested to find out what happens on your case. Please post.
My wife's I-94/H4 expired on April 8 2007, and we applied for I-485 on July 2nd 2007. which means she is legal but for of being out of status she may not be allowed to enter the US.
If you have not applied for your wife's H4 extension, you should consult your attorney right away and file I539 to avail Nunc Pro Tunc (linked to one of Murthy's article). BTW, your wife has started accuring unlawful presence since April 9, 2007 (i.e. unlawful presence is not considered legal, it is way beyond out of status), before this becomes a serious issue - Get hold of a lawyer who can fix this.
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Last edited by wandmaker; 11-25-2007 at 11:04 PM. Reason: changes in underlined italics
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