H-1 out of status, can she still get GC?
Oct 25th 2004, 3:23 pm
#1
Guest
Posts: n/a
H-1 out of status, can she still get GC?
My wife worked for a company on H-1. Last summer this company just
evaporated. I'm on H-1 too. She decided to change to H-4. Somehow she
never sent out the application. We just found out recently. So she's out
of status for more than 1 year. We called a few lawyers and most of them
suggested she go back to China to try her luck (but it's risky) because
here they'll ask for the pay stub. My company just agree to sponsor my
GC. One lawyer said she doesn't need to worry about her status because
if I can get my GC, she just need to pay for $1000 of penalty and she
can still get her GC no matter how long she's out of status. Could
anyone please tell me if this is true or possible? Thanks in advance.
evaporated. I'm on H-1 too. She decided to change to H-4. Somehow she
never sent out the application. We just found out recently. So she's out
of status for more than 1 year. We called a few lawyers and most of them
suggested she go back to China to try her luck (but it's risky) because
here they'll ask for the pay stub. My company just agree to sponsor my
GC. One lawyer said she doesn't need to worry about her status because
if I can get my GC, she just need to pay for $1000 of penalty and she
can still get her GC no matter how long she's out of status. Could
anyone please tell me if this is true or possible? Thanks in advance.
Oct 26th 2004, 10:49 am
#2
Guest
Posts: n/a
Re: H-1 out of status, can she still get GC?
Edward Good <[email protected]> wrote in message news:<[email protected] link.net>...
> My wife worked for a company on H-1. Last summer this company just
> evaporated. I'm on H-1 too. She decided to change to H-4. Somehow she
> never sent out the application. We just found out recently. So she's out
> of status for more than 1 year. We called a few lawyers and most of them
> suggested she go back to China to try her luck (but it's risky) because
> here they'll ask for the pay stub.
I don't understand. She sounds eligible for an H-4 visa. She might
be asked to show your pay stub (to help show you are in H-1B status)
but they won't care about hers. What do you believe to be the problem
with this approach?
> My wife worked for a company on H-1. Last summer this company just
> evaporated. I'm on H-1 too. She decided to change to H-4. Somehow she
> never sent out the application. We just found out recently. So she's out
> of status for more than 1 year. We called a few lawyers and most of them
> suggested she go back to China to try her luck (but it's risky) because
> here they'll ask for the pay stub.
I don't understand. She sounds eligible for an H-4 visa. She might
be asked to show your pay stub (to help show you are in H-1B status)
but they won't care about hers. What do you believe to be the problem
with this approach?
Oct 26th 2004, 11:23 am
#3
Guest
Posts: n/a
Re: H-1 out of status, can she still get GC?
"Edward Good" <[email protected]> wrote in message
news:[email protected] ink.net...
> My wife worked for a company on H-1. Last summer this company just
> evaporated. I'm on H-1 too. She decided to change to H-4. Somehow she
> never sent out the application. We just found out recently. So she's out
> of status for more than 1 year. We called a few lawyers and most of them
> suggested she go back to China to try her luck (but it's risky) because
> here they'll ask for the pay stub. My company just agree to sponsor my
> GC. One lawyer said she doesn't need to worry about her status because
> if I can get my GC, she just need to pay for $1000 of penalty and she
> can still get her GC no matter how long she's out of status.
This strategy includes filing Form I-485A, asking to qualify under 245(i).
It is *only* available to your wife if your labor certification application
or I-140 petition was filed before April 30, 2001.
Unless she qualifies under 245(i), she will have to leave the U.S. and
re-enter in H-4 status in order to get a "clean" status and qualify to file
Form I-485. Otherwise she will have to undergo consular immigrant visa
processing.
She should be careful not to overstay the H-1B expiration date on her I-94
by more than 6 months. That would make her subject to the 3 year bar, and
unless she can use 245(i), she won't be able to do consular processing or
adjustment, or clean up her nonimmigrant status (without having to remain
outside the U.S. for 3 years or get a waiver).
Could
> anyone please tell me if this is true or possible? Thanks in advance.
news:[email protected] ink.net...
> My wife worked for a company on H-1. Last summer this company just
> evaporated. I'm on H-1 too. She decided to change to H-4. Somehow she
> never sent out the application. We just found out recently. So she's out
> of status for more than 1 year. We called a few lawyers and most of them
> suggested she go back to China to try her luck (but it's risky) because
> here they'll ask for the pay stub. My company just agree to sponsor my
> GC. One lawyer said she doesn't need to worry about her status because
> if I can get my GC, she just need to pay for $1000 of penalty and she
> can still get her GC no matter how long she's out of status.
This strategy includes filing Form I-485A, asking to qualify under 245(i).
It is *only* available to your wife if your labor certification application
or I-140 petition was filed before April 30, 2001.
Unless she qualifies under 245(i), she will have to leave the U.S. and
re-enter in H-4 status in order to get a "clean" status and qualify to file
Form I-485. Otherwise she will have to undergo consular immigrant visa
processing.
She should be careful not to overstay the H-1B expiration date on her I-94
by more than 6 months. That would make her subject to the 3 year bar, and
unless she can use 245(i), she won't be able to do consular processing or
adjustment, or clean up her nonimmigrant status (without having to remain
outside the U.S. for 3 years or get a waiver).
Could
> anyone please tell me if this is true or possible? Thanks in advance.
Oct 26th 2004, 4:03 pm
#4
Guest
Posts: n/a
Re: H-1 out of status, can she still get GC?
She's supposed to be eligible for an H-4 and my H-1 status is good. The
only problem is that her H-1 status. Every lawyer said that they'll
check if my wife is in good status because she has a work visa. It's
just so easy for them to find out because her company disappeared more
than one year ago.
J. J. Farrell wrote:
> Edward Good <[email protected]> wrote in message news:<[email protected] link.net>...
>
>>My wife worked for a company on H-1. Last summer this company just
>>evaporated. I'm on H-1 too. She decided to change to H-4. Somehow she
>>never sent out the application. We just found out recently. So she's out
>>of status for more than 1 year. We called a few lawyers and most of them
>>suggested she go back to China to try her luck (but it's risky) because
>>here they'll ask for the pay stub.
>
>
> I don't understand. She sounds eligible for an H-4 visa. She might
> be asked to show your pay stub (to help show you are in H-1B status)
> but they won't care about hers. What do you believe to be the problem
> with this approach?
only problem is that her H-1 status. Every lawyer said that they'll
check if my wife is in good status because she has a work visa. It's
just so easy for them to find out because her company disappeared more
than one year ago.
J. J. Farrell wrote:
> Edward Good <[email protected]> wrote in message news:<[email protected] link.net>...
>
>>My wife worked for a company on H-1. Last summer this company just
>>evaporated. I'm on H-1 too. She decided to change to H-4. Somehow she
>>never sent out the application. We just found out recently. So she's out
>>of status for more than 1 year. We called a few lawyers and most of them
>>suggested she go back to China to try her luck (but it's risky) because
>>here they'll ask for the pay stub.
>
>
> I don't understand. She sounds eligible for an H-4 visa. She might
> be asked to show your pay stub (to help show you are in H-1B status)
> but they won't care about hers. What do you believe to be the problem
> with this approach?
Oct 26th 2004, 4:37 pm
#5
Guest
Posts: n/a
Re: H-1 out of status, can she still get GC?
Thank you very much, Sylvia. My wife is not qualified under 245(i). I
told the lawyer about this and asked her about the reason why she thinks
my wife will be fine. The lawyer didn't answer and just promised she can
do it. But she's a friend's friend and our friend say we could trust
her. I'm really confused.
There's another lawyer today and he said that my wife should be able to
change to H-4. Because she's forced to be out of status (the company
disappeared and they never told her) and my H-1 has been good all the
time. If USCIS rejects her application, she should keep appealling and
eventually she'll get her H-4. He said he has one successful case. But I
doubt the success ratio of this strategy.
The H-1B expiration date on my wife's I-94 is March next year. So I
still incline to going back to China. But my wife is afraid that if they
ask for her paystub and find out that she's already out of status before
she leaves she'll be rejected a visa and they won't even give her any
chance to appeal. So we still can't make a decision.
Sylvia Ottemoeller wrote:
> "Edward Good" <[email protected]> wrote in message
> news:[email protected] ink.net...
>
>
>>My wife worked for a company on H-1. Last summer this company just
>>evaporated. I'm on H-1 too. She decided to change to H-4. Somehow she
>>never sent out the application. We just found out recently. So she's out
>>of status for more than 1 year. We called a few lawyers and most of them
>>suggested she go back to China to try her luck (but it's risky) because
>>here they'll ask for the pay stub. My company just agree to sponsor my
>>GC. One lawyer said she doesn't need to worry about her status because
>>if I can get my GC, she just need to pay for $1000 of penalty and she
>>can still get her GC no matter how long she's out of status.
>
>
> This strategy includes filing Form I-485A, asking to qualify under 245(i).
> It is *only* available to your wife if your labor certification application
> or I-140 petition was filed before April 30, 2001.
>
> Unless she qualifies under 245(i), she will have to leave the U.S. and
> re-enter in H-4 status in order to get a "clean" status and qualify to file
> Form I-485. Otherwise she will have to undergo consular immigrant visa
> processing.
>
> She should be careful not to overstay the H-1B expiration date on her I-94
> by more than 6 months. That would make her subject to the 3 year bar, and
> unless she can use 245(i), she won't be able to do consular processing or
> adjustment, or clean up her nonimmigrant status (without having to remain
> outside the U.S. for 3 years or get a waiver).
>
> Could
>
>>anyone please tell me if this is true or possible? Thanks in advance.
>
>
>
>
told the lawyer about this and asked her about the reason why she thinks
my wife will be fine. The lawyer didn't answer and just promised she can
do it. But she's a friend's friend and our friend say we could trust
her. I'm really confused.
There's another lawyer today and he said that my wife should be able to
change to H-4. Because she's forced to be out of status (the company
disappeared and they never told her) and my H-1 has been good all the
time. If USCIS rejects her application, she should keep appealling and
eventually she'll get her H-4. He said he has one successful case. But I
doubt the success ratio of this strategy.
The H-1B expiration date on my wife's I-94 is March next year. So I
still incline to going back to China. But my wife is afraid that if they
ask for her paystub and find out that she's already out of status before
she leaves she'll be rejected a visa and they won't even give her any
chance to appeal. So we still can't make a decision.
Sylvia Ottemoeller wrote:
> "Edward Good" <[email protected]> wrote in message
> news:[email protected] ink.net...
>
>
>>My wife worked for a company on H-1. Last summer this company just
>>evaporated. I'm on H-1 too. She decided to change to H-4. Somehow she
>>never sent out the application. We just found out recently. So she's out
>>of status for more than 1 year. We called a few lawyers and most of them
>>suggested she go back to China to try her luck (but it's risky) because
>>here they'll ask for the pay stub. My company just agree to sponsor my
>>GC. One lawyer said she doesn't need to worry about her status because
>>if I can get my GC, she just need to pay for $1000 of penalty and she
>>can still get her GC no matter how long she's out of status.
>
>
> This strategy includes filing Form I-485A, asking to qualify under 245(i).
> It is *only* available to your wife if your labor certification application
> or I-140 petition was filed before April 30, 2001.
>
> Unless she qualifies under 245(i), she will have to leave the U.S. and
> re-enter in H-4 status in order to get a "clean" status and qualify to file
> Form I-485. Otherwise she will have to undergo consular immigrant visa
> processing.
>
> She should be careful not to overstay the H-1B expiration date on her I-94
> by more than 6 months. That would make her subject to the 3 year bar, and
> unless she can use 245(i), she won't be able to do consular processing or
> adjustment, or clean up her nonimmigrant status (without having to remain
> outside the U.S. for 3 years or get a waiver).
>
> Could
>
>>anyone please tell me if this is true or possible? Thanks in advance.
>
>
>
>
Oct 26th 2004, 11:54 pm
#6
Guest
Posts: n/a
Re: H-1 out of status, can she still get GC?
You have two choices: apply for H-4 here or overseas. If you apply
here, and they notice the gap in her status, they will approve her H-4
petition but require her to obtain the H-4 visa stamp at the US
consulate in her home country, and obtain a new I-94 card granting H4
status upon re-entry. If she leaves before her I-94 expires (or
within 6 months of her I-94 expiration date), legally she will be
fine. Since her I-94 has not expired, the officer should issue her an
H-4 visa stamp. Whether the consular officer issues her an H-4 is
another thing. The other alternative is for her to apply for the H-4
dependent visa overseas in her home country.
I am not sure why you are pondering over the choices. Since her I-94
has not expired, you have nothing to lose by applying here since she
has to file for H-4 status anyway. Some officers ask for pay stubs,
others do not. As a general rule, we do not include the pay stubs
until they request it. Sometimes we do that because there is a gap in
status and do not want to bring it to their attention. They have NOT
requested it over 75% of the time. But of course, they could and have
requested it before. Again, keep in mind they will approve her H-4
petition. That isn't the problem. So if you are gong to apply, go
ahead and apply for it here.
Good luck!
Hosam
here, and they notice the gap in her status, they will approve her H-4
petition but require her to obtain the H-4 visa stamp at the US
consulate in her home country, and obtain a new I-94 card granting H4
status upon re-entry. If she leaves before her I-94 expires (or
within 6 months of her I-94 expiration date), legally she will be
fine. Since her I-94 has not expired, the officer should issue her an
H-4 visa stamp. Whether the consular officer issues her an H-4 is
another thing. The other alternative is for her to apply for the H-4
dependent visa overseas in her home country.
I am not sure why you are pondering over the choices. Since her I-94
has not expired, you have nothing to lose by applying here since she
has to file for H-4 status anyway. Some officers ask for pay stubs,
others do not. As a general rule, we do not include the pay stubs
until they request it. Sometimes we do that because there is a gap in
status and do not want to bring it to their attention. They have NOT
requested it over 75% of the time. But of course, they could and have
requested it before. Again, keep in mind they will approve her H-4
petition. That isn't the problem. So if you are gong to apply, go
ahead and apply for it here.
Good luck!
Hosam
Oct 27th 2004, 6:18 am
#7
Guest
Posts: n/a
Re: H-1 out of status, can she still get GC?
"Edward Good" <[email protected]> wrote in message
news:[email protected] ink.net...
> Thank you very much, Sylvia. My wife is not qualified under 245(i). I
> told the lawyer about this and asked her about the reason why she thinks
> my wife will be fine. The lawyer didn't answer and just promised she can
> do it. But she's a friend's friend and our friend say we could trust
> her. I'm really confused.
Avoid that lawyer like the plague. If you want to show her up, ask for the
regulatory authority which permits your wife to use 245(i), in writing.
Also, having a friend is nice, but don't take that friend's advice on
immigration.
I'm quite serious about this. 245(i) is something that every competent
immigration attorney understands.
> There's another lawyer today and he said that my wife should be able to
> change to H-4. Because she's forced to be out of status (the company
> disappeared and they never told her)
What? Didn't she notice that the paychecks stopped coming? This is one
part of the story that does not make sense. If the company was not paying
her, they were operating illegally, and she should have done something about
it immediately. It makes her H-1B sound a bit shady.
and my H-1 has been good all the
> time. If USCIS rejects her application, she should keep appealling and
> eventually she'll get her H-4. He said he has one successful case. But I
> doubt the success ratio of this strategy.
If there is a plausible reason that your wife failed to file the I-539,
through circumstances beyond her control (perhaps improper legal advice that
she can document?) then this strategy has a chance of working. But it will
probably take time (months), and she should not stay in the U.S. beyond
September 2005.
> The H-1B expiration date on my wife's I-94 is March next year. So I
> still incline to going back to China. But my wife is afraid that if they
> ask for her paystub and find out that she's already out of status before
> she leaves she'll be rejected a visa and they won't even give her any
> chance to appeal. So we still can't make a decision.
The fact that she violated her nonimmigrant status is not a ground of
inadmissibility, nor a reason for the U.S. consular post to deny the visa.
I think you should hire an immigration attorney who is really experienced
with consular applications, and who can pave the way before your wife leaves
the country, through conversations with the consular officer. Some of these
attorneys personally know a lot of consular officers.
I think there is a chance that this can be handled in Canada or Mexico, but
I wouldn't do it without the services of a top attorney.
> Sylvia Ottemoeller wrote:
> > "Edward Good" <[email protected]> wrote in message
> > news:[email protected] ink.net...
> >>My wife worked for a company on H-1. Last summer this company just
> >>evaporated. I'm on H-1 too. She decided to change to H-4. Somehow she
> >>never sent out the application. We just found out recently. So she's out
> >>of status for more than 1 year. We called a few lawyers and most of them
> >>suggested she go back to China to try her luck (but it's risky) because
> >>here they'll ask for the pay stub. My company just agree to sponsor my
> >>GC. One lawyer said she doesn't need to worry about her status because
> >>if I can get my GC, she just need to pay for $1000 of penalty and she
> >>can still get her GC no matter how long she's out of status.
> > This strategy includes filing Form I-485A, asking to qualify under
245(i).
> > It is *only* available to your wife if your labor certification
application
> > or I-140 petition was filed before April 30, 2001.
> >
> > Unless she qualifies under 245(i), she will have to leave the U.S. and
> > re-enter in H-4 status in order to get a "clean" status and qualify to
file
> > Form I-485. Otherwise she will have to undergo consular immigrant visa
> > processing.
> >
> > She should be careful not to overstay the H-1B expiration date on her
I-94
> > by more than 6 months. That would make her subject to the 3 year bar,
and
> > unless she can use 245(i), she won't be able to do consular processing
or
> > adjustment, or clean up her nonimmigrant status (without having to
remain
> > outside the U.S. for 3 years or get a waiver).
> >
> > Could
> >>anyone please tell me if this is true or possible? Thanks in advance.
news:[email protected] ink.net...
> Thank you very much, Sylvia. My wife is not qualified under 245(i). I
> told the lawyer about this and asked her about the reason why she thinks
> my wife will be fine. The lawyer didn't answer and just promised she can
> do it. But she's a friend's friend and our friend say we could trust
> her. I'm really confused.
Avoid that lawyer like the plague. If you want to show her up, ask for the
regulatory authority which permits your wife to use 245(i), in writing.
Also, having a friend is nice, but don't take that friend's advice on
immigration.
I'm quite serious about this. 245(i) is something that every competent
immigration attorney understands.
> There's another lawyer today and he said that my wife should be able to
> change to H-4. Because she's forced to be out of status (the company
> disappeared and they never told her)
What? Didn't she notice that the paychecks stopped coming? This is one
part of the story that does not make sense. If the company was not paying
her, they were operating illegally, and she should have done something about
it immediately. It makes her H-1B sound a bit shady.
and my H-1 has been good all the
> time. If USCIS rejects her application, she should keep appealling and
> eventually she'll get her H-4. He said he has one successful case. But I
> doubt the success ratio of this strategy.
If there is a plausible reason that your wife failed to file the I-539,
through circumstances beyond her control (perhaps improper legal advice that
she can document?) then this strategy has a chance of working. But it will
probably take time (months), and she should not stay in the U.S. beyond
September 2005.
> The H-1B expiration date on my wife's I-94 is March next year. So I
> still incline to going back to China. But my wife is afraid that if they
> ask for her paystub and find out that she's already out of status before
> she leaves she'll be rejected a visa and they won't even give her any
> chance to appeal. So we still can't make a decision.
The fact that she violated her nonimmigrant status is not a ground of
inadmissibility, nor a reason for the U.S. consular post to deny the visa.
I think you should hire an immigration attorney who is really experienced
with consular applications, and who can pave the way before your wife leaves
the country, through conversations with the consular officer. Some of these
attorneys personally know a lot of consular officers.
I think there is a chance that this can be handled in Canada or Mexico, but
I wouldn't do it without the services of a top attorney.
> Sylvia Ottemoeller wrote:
> > "Edward Good" <[email protected]> wrote in message
> > news:[email protected] ink.net...
> >>My wife worked for a company on H-1. Last summer this company just
> >>evaporated. I'm on H-1 too. She decided to change to H-4. Somehow she
> >>never sent out the application. We just found out recently. So she's out
> >>of status for more than 1 year. We called a few lawyers and most of them
> >>suggested she go back to China to try her luck (but it's risky) because
> >>here they'll ask for the pay stub. My company just agree to sponsor my
> >>GC. One lawyer said she doesn't need to worry about her status because
> >>if I can get my GC, she just need to pay for $1000 of penalty and she
> >>can still get her GC no matter how long she's out of status.
> > This strategy includes filing Form I-485A, asking to qualify under
245(i).
> > It is *only* available to your wife if your labor certification
application
> > or I-140 petition was filed before April 30, 2001.
> >
> > Unless she qualifies under 245(i), she will have to leave the U.S. and
> > re-enter in H-4 status in order to get a "clean" status and qualify to
file
> > Form I-485. Otherwise she will have to undergo consular immigrant visa
> > processing.
> >
> > She should be careful not to overstay the H-1B expiration date on her
I-94
> > by more than 6 months. That would make her subject to the 3 year bar,
and
> > unless she can use 245(i), she won't be able to do consular processing
or
> > adjustment, or clean up her nonimmigrant status (without having to
remain
> > outside the U.S. for 3 years or get a waiver).
> >
> > Could
> >>anyone please tell me if this is true or possible? Thanks in advance.
Oct 27th 2004, 10:21 am
#8
Guest
Posts: n/a
Re: H-1 out of status, can she still get GC?
Edward Good <[email protected]> wrote in message news:<[email protected] link.net>...
> J. J. Farrell wrote:
>
> > Edward Good <[email protected]> wrote in message news:<[email protected] link.net>...
> >
> >>My wife worked for a company on H-1. Last summer this company just
> >>evaporated. I'm on H-1 too. She decided to change to H-4. Somehow she
> >>never sent out the application. We just found out recently. So she's out
> >>of status for more than 1 year. We called a few lawyers and most of them
> >>suggested she go back to China to try her luck (but it's risky) because
> >>here they'll ask for the pay stub.
> >
> > I don't understand. She sounds eligible for an H-4 visa. She might
> > be asked to show your pay stub (to help show you are in H-1B status)
> > but they won't care about hers. What do you believe to be the problem
> > with this approach?
> She's supposed to be eligible for an H-4 and my H-1 status is good. The
> only problem is that her H-1 status. Every lawyer said that they'll
> check if my wife is in good status because she has a work visa. It's
> just so easy for them to find out because her company disappeared more
> than one year ago.
Somebody is confused, and you've been left with a bad understanding.
Once your wife leaves the USA, she no longer has any status. As long
as she does not over-stay her I-94, she is fine. People who apply
at Consulates for visas do not have any status, so it does not make
any sense for the Consulate to check her status. As long as she
doesn't overstay the I-94, leaving the USA effectively cleans up the
fact that she is currently out of status. She can apply for an H-4
visa in the same way as any other applicant.
Her being out of status matters if she tries to change status to H-4
while in the USA. An applicant must be in status when applying to
change status. She might get away with it, or they might ask for
proof that she is currently in status, such as recent pay stubs.
If they decide she is out of status, she will need leave the USA and
get an H-4 visa at a Consulate in her home country before returning.
If they determine she is out of status, that also has the same effect
as if she had overstayed her I-94, and the clock starts counting
towards the automatic bans on re-entering the USA.
> J. J. Farrell wrote:
>
> > Edward Good <[email protected]> wrote in message news:<[email protected] link.net>...
> >
> >>My wife worked for a company on H-1. Last summer this company just
> >>evaporated. I'm on H-1 too. She decided to change to H-4. Somehow she
> >>never sent out the application. We just found out recently. So she's out
> >>of status for more than 1 year. We called a few lawyers and most of them
> >>suggested she go back to China to try her luck (but it's risky) because
> >>here they'll ask for the pay stub.
> >
> > I don't understand. She sounds eligible for an H-4 visa. She might
> > be asked to show your pay stub (to help show you are in H-1B status)
> > but they won't care about hers. What do you believe to be the problem
> > with this approach?
> She's supposed to be eligible for an H-4 and my H-1 status is good. The
> only problem is that her H-1 status. Every lawyer said that they'll
> check if my wife is in good status because she has a work visa. It's
> just so easy for them to find out because her company disappeared more
> than one year ago.
Somebody is confused, and you've been left with a bad understanding.
Once your wife leaves the USA, she no longer has any status. As long
as she does not over-stay her I-94, she is fine. People who apply
at Consulates for visas do not have any status, so it does not make
any sense for the Consulate to check her status. As long as she
doesn't overstay the I-94, leaving the USA effectively cleans up the
fact that she is currently out of status. She can apply for an H-4
visa in the same way as any other applicant.
Her being out of status matters if she tries to change status to H-4
while in the USA. An applicant must be in status when applying to
change status. She might get away with it, or they might ask for
proof that she is currently in status, such as recent pay stubs.
If they decide she is out of status, she will need leave the USA and
get an H-4 visa at a Consulate in her home country before returning.
If they determine she is out of status, that also has the same effect
as if she had overstayed her I-94, and the clock starts counting
towards the automatic bans on re-entering the USA.
Oct 27th 2004, 10:34 am
#9
Guest
Posts: n/a
Re: H-1 out of status, can she still get GC?
[email protected] (Tariq) wrote in message news:<[email protected]. com>...
> You have two choices: apply for H-4 here or overseas. If you apply
> here, and they notice the gap in her status, they will approve her H-4
> petition
There is no such thing as an "H-4 petition". They will simply
refuse her application to change status.
> but require her to obtain the H-4 visa stamp at the US
> consulate in her home country, and obtain a new I-94 card granting H4
> status upon re-entry. If she leaves before her I-94 expires (or
> within 6 months of her I-94 expiration date), legally she will be
> fine.
It is not a good idea to have a record of having been "illegally
present". She will get such a record if she overstays her I-94 or
if they refuse her change of status request because she is out of
status.
> Since her I-94 has not expired, the officer should issue her an
> H-4 visa stamp.
Please stop talking nonsense. She can possibly change status to
H-4 without leaving the USA (though not legally properly) but she
can't get a visa without going to a Consulate outside the USA.
> Whether the consular officer issues her an H-4 is
> another thing. The other alternative is for her to apply for the H-4
> dependent visa overseas in her home country.
>
> I am not sure why you are pondering over the choices. Since her I-94
> has not expired, you have nothing to lose by applying here since she
> has to file for H-4 status anyway.
She does not have to "file for H-4 Status".
> Some officers ask for pay stubs,
> others do not. As a general rule, we do not include the pay stubs
> until they request it. Sometimes we do that because there is a gap in
> status and do not want to bring it to their attention. They have NOT
> requested it over 75% of the time. But of course, they could and have
> requested it before. Again, keep in mind they will approve her H-4
> petition.
Again, there is no such thing as an "H-4 petition".
> That isn't the problem. So if you are gong to apply, go
> ahead and apply for it here.
What she has to lose is that she gets an "illegally present" record
if they determine she is out of status, her H-1B visa will be cancelled
(perhaps not a big deal, but it might have been useful in the future),
and she must leave the USA within 6 months of the determination to
avoid being subject to a re-entry ban.
> You have two choices: apply for H-4 here or overseas. If you apply
> here, and they notice the gap in her status, they will approve her H-4
> petition
There is no such thing as an "H-4 petition". They will simply
refuse her application to change status.
> but require her to obtain the H-4 visa stamp at the US
> consulate in her home country, and obtain a new I-94 card granting H4
> status upon re-entry. If she leaves before her I-94 expires (or
> within 6 months of her I-94 expiration date), legally she will be
> fine.
It is not a good idea to have a record of having been "illegally
present". She will get such a record if she overstays her I-94 or
if they refuse her change of status request because she is out of
status.
> Since her I-94 has not expired, the officer should issue her an
> H-4 visa stamp.
Please stop talking nonsense. She can possibly change status to
H-4 without leaving the USA (though not legally properly) but she
can't get a visa without going to a Consulate outside the USA.
> Whether the consular officer issues her an H-4 is
> another thing. The other alternative is for her to apply for the H-4
> dependent visa overseas in her home country.
>
> I am not sure why you are pondering over the choices. Since her I-94
> has not expired, you have nothing to lose by applying here since she
> has to file for H-4 status anyway.
She does not have to "file for H-4 Status".
> Some officers ask for pay stubs,
> others do not. As a general rule, we do not include the pay stubs
> until they request it. Sometimes we do that because there is a gap in
> status and do not want to bring it to their attention. They have NOT
> requested it over 75% of the time. But of course, they could and have
> requested it before. Again, keep in mind they will approve her H-4
> petition.
Again, there is no such thing as an "H-4 petition".
> That isn't the problem. So if you are gong to apply, go
> ahead and apply for it here.
What she has to lose is that she gets an "illegally present" record
if they determine she is out of status, her H-1B visa will be cancelled
(perhaps not a big deal, but it might have been useful in the future),
and she must leave the USA within 6 months of the determination to
avoid being subject to a re-entry ban.
