Mamachi Tang

My wife was a student through August 2006, graduated at the end of the
summer term.

The University recently informed her that she had not registered for
sufficient credits in Spring 2006 and so she has been out of status
since March 14 2006. As soon as she heard this from the school (on Aug
31), she made arrangements to leave the US to avoid exceeding the 180
day limit which results in the 3 year ban.

She purchased tickets for Sep 13 failing to realize that there are 31
days in some months. So, on the day she left, she had been 183 days out
of status. However, since she was graduating anyway at the end of
summer, we had planned to have her obtain an H4 visa as dependent on my
H1B. She went back to our home country and applied for the H4. This was
granted without any problems.

I have several questions about this.
1. Can we make the assertion that the violation was not our fault since
the school did not inform us in time about it? The school let her
continue as a foreign student for summer term knowing that she had been
out of status. Or is it always the student's responsibility to maintain
status?

2. How is the automatic ban enforced? She was granted visa by the US
Embassy on Sep 26, about 13 days after she left the country (turning in
the violating I-94). Now, will she be stopped from re-entry by the
immigration official at the airport when she returns? I am particularly
worried if this scenario occurs because she is not in a medical
condition to make the return journey to our home country immediately.
She will need to take a break of a day or 2 before that.

2. If she is allowed entry into the US at this time, will she be
deported when the USCIS gets to know of this violation?

3. She is listed as a dependent on my green card application. We have
cleared the 140 but cannot apply for 485 for a while due to the 3.5
year backlogs in EB3. If the ban is applied and we have to file the 485
before her ban period ends, what happens to the application? Is it a
must for her to be present in the US or is there another way to get the
GC for both of us? Also, will this affect the GC process negatively?

I appreciate your patience in reading through this post. Please reply
and let me know what is the likely outcome from this mess.

Thank you

Marco

[email protected] wrote:

    > I am particularly
    > worried if this scenario occurs because she is not in a medical
    > condition to make the return journey to our home country immediately.
    > She will need to take a break of a day or 2 before that.

If someone is deported, they are not put on a plane straight back to
their home country. It may take a day or longer for a return flight to
be arranged, depending on where they come from. In the meantime, they
will be housed at an immigration detention facility, which I suspect
will be somewhat less comfortable than a plane... If I were you I would
contact an immigration lawyer and have your wife contact the nearest US
consulate. Even when everything is cleared up, it might be a good idea
for your wife to carry evidence of her health condition in English when
she travels back. It might not make much difference, but it's probably
worth a try.

Bob

It's the student's responsibility to maintain status, not the university I'm afraid.

As for the rest, have a consult with an immigration lawyer.