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Topic: dependent Out of status - applying I485
Anyone out there with any feedback - positive or negative maybe you own experience if you already have been approved.
My wife has been out of status for more than a year now. My lawyer's suggestions was to go ahead and file I485. He thinks this will go to an interview were we could explaiin the reason. My wife went out of status due to ignorance on my part. I had twice renewed her visa in the past but both times I had renewed my H1 and we happened to go to India were we wnet to the embassy and had both our passports stamped. This was fine and led me to believe that all I had to do was to keep my self in status and my wife being a dependent would "derive" the benefits out of my H1 visa. The 3rd time I renewed she was pregnant and we decided to wait before we go to India. When I was filing my I485 thats when my ex lawyer pointed out that she was out of status and I should have filed I539 for her. Yes my ex-lawyer. It might be my ignorance but it definitely was more to do with "lack" of advice from my exlawyer that put me in this situation. My current lawyer pointed out that my I140 was done before my 3rd H1 and the exlawyer had ofcourse mentioned my wife in the I140 but failed to even mention her during the H1 extension.
I was wondering if anyone had a similar problem.
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I am not aware of wife being mentioned on H1 extension application - experienced folks please chime in here.
My lawyer also missed her when doing my H1 transfer once, but I ensured he took care of it subsequently.
Most probably you shall get through fine, but I suspect there would be some initial struggle. Please continue to come back and share what your attorney recommends here. You may help a lot of folks in similar situations.
Best Wishes
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I have to add though, that some cases really baffle me and this one will be right up there.
It was your case, dammit, you should have stayed on top of everything. All the attorneys could learn a lot, just from reading thru these immigration forums...i mean some of the folks here are so well versed in immigration matters. All one has to do as a beneficiary is to go thru such forums to keep their immigration knowledge updated.
It's all water drown the drain and hence no point wasting any more time. Pls get a second, third opinion from a reputed attorney. I hope your spose doesn't get slapped with a 10 year no entry ban.
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When I say "mention" I mean more in the way "you know i could apply for your wife's I539 along with this if you want" to which i would have siad "Sure". I also brought this up coz i sometimes think that he probably did not know that I ws married when he did my earlier H1s. Yes he had still never asked me.
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I make no excuses. I should have been. Some events just happen so naturally you neve look back to see it any differently. If i had not happened to go back to the embassy the 2 times i had renewed i may have been more cautious and asked the right questions but that was not to be.
If you read this ... you will be surprised as i was to know this happens more often that we think it does
http://www.murthy.com/news/n_nunpro.html
Question might be when you dicover the problem. If it is within the six month period no problem ... just go back to your country go to the embassy and explain the situation most likely they will put the stamp and make everything "go away". Past months you are looking at 3yr ban and past 12 month you are looking at the 10 year ban. My exlawyer decided to sell me down the river and advised me to go back home and apply from the embassy again. Chances were very high that they would have banned her and I did not want to take that risk
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It was 3years since we had gone to india before we discovered this and it has been 2 years since. The ban is exactly why we have not been able to go back int he last 6years. We have 2 kids now. My wifes 2 brothers got married. We have not been able to go back to family because of this situation. I know people are in a lot worse situations but I just feel i had no control over this as had expected my lawyer to advise me in all such matters and I was at the time distracted with all the BEC happenings not realizing that was something more critical for me to be worried about.
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Try meeting your local senator/congressman and see if they are willing to help.
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USCIS issued a memo in March 2005, that clarifies the eligibility requirements to benefit from §245(i) of the Immigration and Nationality Act. In essence, this provision permits individuals to adjust status to permanent residence, even if they entered the United States without inspection or otherwise are out of status / unlawfully present in the U.S.
In order to use §245(i), one must be eligible in all other respects for permanent residence. That is, §245(i) does not, in and of itself, provide a way to obtain a green card. It is not an amnesty. What it does is eliminate a procedural barrier to obtaining the approval of the I-485 application for adjustment of status that exists for people who have status issues that otherwise would prevent them from qualifying to adjust status to permanent residence.
The Memo clarifies certain eligibility requirements for §245(i). The term "grandfathered" is a legal term essentially including a certain group of people under the law or exempting a group from a new law based upon a prior act or condition. To illustrate using an example with no bearing in reality, if a law is passed prohibiting people under 21 from driving, it might allow those who already have drivers' licenses to continue to drive, even if they are under 21 years of age. In this imaginary example, these existing drivers would be considered as "grandfathered in" because of their existing status as licensed drivers.
To be grandfathered under §245(i), a person must be the beneficiary of a qualifying immigrant visa petition (usually I-130/I-140) or labor certification (not the Labor Condition Application used for H1Bs) filed on or before April 30, 2001. If the qualifying immigrant visa petition or application for labor certification was filed between January 15, 1998 and April 30, 2001, that person must also prove that s/he was physically present in the United States on December 21, 2000, on the date that the LIFE Act was passed. All potential beneficiaries of §245(i) must show that the petition or labor certification was properly filed and approvable when filed. This latter requirement essentially means that it had to be a good, valid case when filed, even if it ultimately did not result in a green card approval for some reason.
If your wife qualifies for Sec. 245i, the next step would be for your wife to file her 485 along with yours. Questions concerning Sec. 245i and her 485 should be directed to your current attorney who is processing your green card.
Please feel free to contace me at inspectorfox@yahoo.com if you like to discuss your case offline.
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Inspector, to be eligible for 245i you must not leave the country after December, 21st, 2000. Am I wrong?
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dire, you will probably end up in immigration court blaming your ex lawyer for misrepepresentation or whatever it is called. It would be good idea to get some evidence supporting that these mistakes were made with advice of ex lawyer. E-mails, letters, forms filed simulatenously showing discrepancies in who petitions were filed for etc.
The common practice for H1s that will support your lawyer, however, is employer pays H1 fees and employee is responsible for dependents H4s. It means dependents are usually lawyers responsibility.
Jusy my 2 cents.
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In order to benefit from 245i he had to have petitioned for his wife before or on April 30th 2001.
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Inspector, to be eligible for 245i you must not leave the country after December, 21st, 2000. Am I wrong?
You have to prove that you were physically present in the country on December 20, 2000. |
AND you must have stayed in the country all that time. It is amnesty for long term illegals.
I read a story about one guy who left and came back AP and his petition got denied because of that.
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I am aware of the 245(i). It does not apply to me since we filed in March 2004. But there are certain stipulations in there which I think my lawyer is hoping to make use of. 2 things my lawyer hopes to use is the fact that we were had help from a lawyer and were relying on his advise for our immigration matters. Hence he is at fault in this case. It works similar to if you have a tax accountant to work your taxes and messes it up. You cannot be held accountable for what he did. Also 245(i) had stipulations in the order of 8 C.F.R. Sec. 245.1(d)(2)(ii) - which states
"(2) No fault of the applicant or for technical reasons. The parenthetical phrase other than through no fault of his or her
own or for technical reasons shall be limited to:
(i) Inaction of another individual or organization designated by regulation to act on behalf of an individual and over
whose actions the individual has no control, if the inaction is acknowledged by that individual or organization (as, for
example, where a designated school official certified under § 214.2(f) of this chapter or an exchange propram sponsor
under § 214.2(j) of this chapter did not provide required notification to the Service of continuation of status, or did not
forward a request for continuation of status to the Service); or "
I had actually applied for my wife's I539 hoping she would be granted nunc pro tunc benefits but it was entirely upto the discretion of the IOs and I made 2 other attempts which I think were sent back to the same IO and all of them were rejected. This process took between dec 26 2006 to january 2007. I was getting ready to file again when i heard of the memo and decided to see if i get my gc and then fight it out if it gets rejected. But now i am again losing hope. I had thought of WOM for my gc but my lawyer suggested that if we want their discretion we do not have an option for WOM since it might work against my wife. As a process of the refiling I539 we have all the paper work already done with reagrds to evidence and such. If I do not hear anything about my GC by May 1st I plan to apply I539 again.
My lawyer has 3 scenarios how this all pans out.
We get a reasonable IO who actually understands immigration law and uses his discretion to grant us the GC -- great scenario
They call us for interview and the IO decides then
They approve my GC but reject my wife's ... we go to court... ---- absolutely do not want to get into this.
All your suggestions were great. Thanks a lot guys.
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