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My first I-485 (concurrently with I-140 pursuant to schedule A) was filed validly since I was on H4. However, my first I-485 was denied one year after its filing (unable to provide VisaScreen Certificate). I did not renew my H4. My second I-485 was filed almost immediately after the denial of my first I-485. I have been working on EAD in US since (two on the first I-485, one from the second).
I was told that my second I-485 was not filed properly, meaning I was not on nonimmigrant status at the time of second filing my I-485 and worst of all, 245(k) did not apply in my situation since the time when I was out of status was counted from the time when my H4 expired but NOT from the time the first I-485 was denied. Is there an argument to make that the 180 days could be counted when the first I-485 was denied?
If you have similar situation, please share it here. Or if there is such a thread, please let me know. Unfortunately, this situation arises from concurrent filing of I-140/485 and the difficulty of obtaining VisaScreen Certificate. What is the solution to this? What is your way out?
Re: first I-485 denied and filed second I-485 in US
Seems you didn't hire a good lawyer in the first place.
Once you used your EAD, your status is 485 pending, you lost your H4 status. Once your I485 is denied, you need to leave the country immediately.
It's a serious problem, and consult a good lawyer. Make sure you do not overstay for more than half a year.
Originally Posted by wbd
Hello,
My first I-485 (concurrently with I-140 pursuant to schedule A) was filed validly since I was on H4. However, my first I-485 was denied one year after its filing (unable to provide VisaScreen Certificate). I did not renew my H4. My second I-485 was filed almost immediately after the denial of my first I-485. I have been working on EAD in US since (two on the first I-485, one from the second).
I was told that my second I-485 was not filed properly, meaning I was not on nonimmigrant status at the time of second filing my I-485 and worst of all, 245(k) did not apply in my situation since the time when I was out of status was counted from the time when my H4 expired but NOT from the time the first I-485 was denied. Is there an argument to make that the 180 days could be counted when the first I-485 was denied?
If you have similar situation, please share it here. Or if there is such a thread, please let me know. Unfortunately, this situation arises from concurrent filing of I-140/485 and the difficulty of obtaining VisaScreen Certificate. What is the solution to this? What is your way out?
Re: first I-485 denied and filed second I-485 in US
My case is a little bit similar to yours. My first I485 got denied 8 months after it was filed (because the paralegal in the lawyer's office made a stupid mistake, not becasuse of my visa screen certificate). However, when the first time I filed my I485, I was in F1 status, and my F1 didn't expire until I graduated in May last year, so my lawyer helped me file my second I485 right after my first one got denied.
Honestly, I am not familiar with all those immigration laws, but I truly hope my second I485 will get approved... still waiting here...
Re: first I-485 denied and filed second I-485 in US
Originally Posted by Mino
My case is a little bit similar to yours. My first I485 got denied 8 months after it was filed (because the paralegal in the lawyer's office made a stupid mistake, not becasuse of my visa screen certificate). However, when the first time I filed my I485, I was in F1 status, and my F1 didn't expire until I graduated in May last year, so my lawyer helped me file my second I485 right after my first one got denied.
Honestly, I am not familiar with all those immigration laws, but I truly hope my second I485 will get approved... still waiting here...
Wish you luck, too!!! ^^
Unlike H, L visa, F and B visa do not allow to have immigration intention. Therotically, once immigration petition has been filed, F visa is considered invalid and if 485 is denied, the person need to leave the country immediately.
If the person is in H or L category, if the person maintains the legal stay, even if 485 is denied, the person is still in status as long as EAD has not been used.
You are really lucky in one way. I know many schools Inernational offices will withdraw students from SEVIS system once they learn an immigration petition has been filed. But they do not constantly check. In any case, getting a new I20 will be impossible once I140/485 has been filed.
Re: first I-485 denied and filed second I-485 in US
My wife's situation is similar to yours.
My wife was an H4 visa holder (I am an H1). She got her Registered Nurse license and found a job. Then, she filed I-140/485/765 concurrently. She started working after she got her EAD card. But her 485 was rejected due to failure to submit Visa Screen. She stopped working right after she received rejection letter. But she didn't do anything to return back to H4 (Her attorney said she didn't have to do anything). Now, more than 1 year passed, we need to renew our H1/H4 status. My attorney is concerned if my wife is still in H4 status. I'll post the result.
Originally Posted by wbd
Hello,
My first I-485 (concurrently with I-140 pursuant to schedule A) was filed validly since I was on H4. However, my first I-485 was denied one year after its filing (unable to provide VisaScreen Certificate). I did not renew my H4. My second I-485 was filed almost immediately after the denial of my first I-485. I have been working on EAD in US since (two on the first I-485, one from the second).
I was told that my second I-485 was not filed properly, meaning I was not on nonimmigrant status at the time of second filing my I-485 and worst of all, 245(k) did not apply in my situation since the time when I was out of status was counted from the time when my H4 expired but NOT from the time the first I-485 was denied. Is there an argument to make that the 180 days could be counted when the first I-485 was denied?
If you have similar situation, please share it here. Or if there is such a thread, please let me know. Unfortunately, this situation arises from concurrent filing of I-140/485 and the difficulty of obtaining VisaScreen Certificate. What is the solution to this? What is your way out?
Re: first I-485 denied and filed second I-485 in US
She really needs to follow up with an immigration attorney as soon as possible. Did you happen to go thru the AOS route with her for the green card, were you on her petition?
Definitely speak with an immigration attorney that is familiar with these issues as soon as possible.
Re: first I-485 denied and filed second I-485 in US
Thanks a lot for your reply.
Actually, I filed 485 as her dependent. My status is OK, since I didn't use EAD on 485. My attorney who works for my company renewing our H1/H4 is trying to figure out if my wife is in legal status. Since our 485 were rejected more than a year, 245(k) doesn't apply, what I can do is just wait and see what my attorney can get. I don't know what to do if my wife have been out of status for more than a year. Probably, we're still going to file H1/H4 renewal together to try our luck.
If like OP, wbd, the time of out-of-status is counted from the time when her H4 expired but NOT from the time I-485 was denied, my wife is still in legal status, since our H1/H4 expires in this Oct.
Originally Posted by suzanne4
She really needs to follow up with an immigration attorney as soon as possible. Did you happen to go thru the AOS route with her for the green card, were you on her petition?
Definitely speak with an immigration attorney that is familiar with these issues as soon as possible.
Re: first I-485 denied and filed second I-485 in US
That's for F visa which is not allowed to have immigration intent, not for H visa.
Actually, even for F visa, that rule is not strict. One of my friend successfully returned back to F2 even her 485 got rejected.
Today, my attorney confirmed my wife is out of status, but he will still renew our H1/H4 status together. If my wife's H4 renewal gets rejected, the only way is to appeal. Hope we don't have to do that.
Originally Posted by jonRNMD
from what i understand, if one applies an AOS from a nonimmigrant visa like a H visa and the AOS got denied, he/she can not go back to his H visa.
try consulting another lawyer. i could not believe that your lawyer do not know whether your wife is in an unlawful presence or not.....
Re: first I-485 denied and filed second I-485 in US
And, my attorney said, even we renew our H1/H4 successfully this time, there is still a cloud on my wife's status. To be safe, we should apply green card based on my employment, instead of my wife's employment.
first I-485 denied and filed second I-485 in US
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