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?
I and my wife are in H1/H4 status. We filed 485 based on her employment and got rejected in Jan, 2006 due to failure to submit VisaScreen. Since my wife used her EAD, her H4 status was considered invalid since then. But, we didn't do anything to rescue my wife's status. This June, when I tried to renew our H1/H4 status, the attorney from my company confirmed that my wife was out of status. But, we still submitted her H4 renewal. And, yesterday, our H1/H4 got approved.
Maybe it's just because we are lucky. To play safe, I still suggest to go back to home country to reapply H4 status if somebody is on H4 with EAD and 485 got rejected
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.
you are incorrect on this, it has nothing to do with the ead, that is a separate petition. the issue is that you were included on her i-485, and when that is submitted, the visa that you were actually on was cancelled. the visa is cancelled when the aos is submitted, not when it is denied. it does not automatically get changed back to what it was before. that is what the problem is that you have. you need to apply for the renewal of the h1-b that you were on.
noticed that this was from a few weeks ago, not sure what you have done.
ok...i do not want to be involved in an immigration debate in a nursing forum.....
if she had not taken the english part requirement, i would suggest to her to take IELTS instead of the TOEFL.....good luck my friend
The problem here is that once the nurse has been given a certain time frame to pass the English exams and does not, then they are history as far as immigration is concerned. They are given at least three months to complete it in once they receive the letter, if not done, they get the EAD cancelled, as well as their AOS status. And they are then required to try to get back the previous status that they were on, but it is not something that is done automatically.
That is why I wish that they would follow what they said that they were going to do and require the VSC be submitted initially. That is what we are actually hearing that they are doing now because of cases like this.
If she gets the English passed, she starts the process all over again, they will not use the I-140 that she had submitted before. It was cancelled and cannot be just updated.
I and my wife are in H1/H4 status. We filed 485 based on her employment and got rejected in Jan, 2006 due to failure to submit VisaScreen. Since my wife used her EAD, her H4 status was considered invalid since then. But, we didn't do anything to rescue my wife's status. This June, when I tried to renew our H1/H4 status, the attorney from my company confirmed that my wife was out of status. But, we still submitted her H4 renewal. And, yesterday, our H1/H4 got approved.
Maybe it's just because we are lucky. To play safe, I still suggest to go back to home country to reapply H4 status if somebody is on H4 with EAD and 485 got rejected
Good luck!
If you were on her AOS petition, then techinically you were out of status as well. Your H1-B status got cancelled when you were included with your wife.
Yes, consider the two of you very fortunate. Glad to hear that it worked out for you.
It is not the EAD, but the fact that visas get cancelled when you try to adjust your status.
Can anybody please give me the link of the law which says "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."? My attorney said there is no law defining this situation.
There is a letter that your wife should have received in the mail when they were going to deny her petition for not passing the English exams in the required amount of time. The letter that she received from them when she did not meet the English requirements in the 90 days given, states that your visa has been cancelled. And you need to leave the US within a certain amount of time that is stated. You do not revert back to your original status that you were under if it is denied. The visa that you were on gets cancelled when you apply for the AOS, that is also why you are required to get the I-131, the Advanced Parole, if you wish to leave the US. There is no active visa.
Sounds like that attorney that you were consulting with is not familiar with the requirements of being a nurse in this country. Many are not, if they are dealing on a daily basis with those under the H1-B status.
But even with that, once the I-485 is submitted, then the H1-B is no longer valid. The status is being adjusted, and that is why you are considered in limbo during that time.
What did the actual letter state that your wife received telling her that her EAD was being cancelled? All information should have been in that letter. It is the I-485 that is cancelled, and that causes the EAD to be cancelled, not the other way around.
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.
And the attorney is incorrect with this as well. Just because she got cancelled once, that does not mean that she will get cancelled again. Actually see it happen fairly often. And this is the reason why it is so important to use an immigration attorney that specializes in nurses.
And make sure that she has the English exam passed as well as a Visa Screen Certificate in hand before she ever considers going thru this again. Her biggest problem now is having to start over again, and we do not know when the AOS will open up again. Do not expect it for sometime to happen.
But I strongly disagree with you on this: filing 485 invalidates H1/H4 status.
My understanding is: using EAD/AP on 485 may invalidate H1/H4 status. H1/H4 can keep their non-immigrant status as long as they don't use EAD or AP.
By the way, my wife got her VisaScreen certificate a few months ago, and we filed 485 based on her employment again on June 29th (delivered on July 2nd). No response so far: no package returned, no receipt, no check cashed. Hope the bridge legislation can get passed and all of us can get green card soon!
You are incorrect on this, it has nothing to do with the EAD, that is a separate petition. The issue is that you were included on her I-485, and when that is submitted, the visa that you were actually on was cancelled. The visa is cancelled when the AOS is submitted, not when it is denied. It does not automatically get changed back to what it was before. That is what the problem is that you have. You need to apply for the renewal of the H1-B that you were on.
Noticed that this was from a few weeks ago, not sure what you have done.
i hope you and wife get approval soon....i know that you and your wife are very anxious about your status...i know that because i was in your position for a long time....goodluck and inform us of your approval ok
But I strongly disagree with you on this: filing 485 invalidates H1/H4 status.
My understanding is: using EAD/AP on 485 may invalidate H1/H4 status. H1/H4 can keep their non-immigrant status as long as they don't use EAD or AP.
By the way, my wife got her VisaScreen certificate a few months ago, and we filed 485 based on her employment again on June 29th (delivered on July 2nd). No response so far: no package returned, no receipt, no check cashed. Hope the bridge legislation can get passed and all of us can get green card soon!
Your assumtions are incorrect. The petition for the I-485 is not the same as the one for the EAD. They are two very separate petitions.
And using the EAD or not using it has no bearing on the I-485. The issue is that they cancel out the visa that you were on when the I-485 is submitted. That is what is done in the process of adjusting your status. And why you cannot leave the country without having the I-131 as you no longer have a valid visa. It is easy for you to reapply for the H1-B, as you are not under a quota when renewing, but that is essentially what happened to you. You do not get your old visa back.
And this is what happens when anyone on any type of visa applies for the green card, and they were all on non-immigrant visas. It could have been the F-1, the TN Visa for Canadians, or the H1-B. The issue is that the visa is cancelled. That is why it was written in the letter that your wife received when her EAD was cancelled, that she no longer had a valid visa to remain in the US. There was no mention that she returned to her previous status. And this is not because of the EAD, but just the fact that the I-485 was submitted. There are many that actually continue on the EAD that they had with their OPT, etc., and do not even get the new one. And if they get denied, then they get cancelled. You have been given incorrect information on how the I-485 actually functions.
But the next problem that I can see and one that has been well documented is that immigration came out on July 2nd and stated that they were not accepting any I-485s on that date. Then there are was the arguing by some law firms, and they did not open the time until July 17th, so if filed before then, expect it to be returned. That is what they stated in the Bulletin that they were going to be doing. And why nothing has been cashed or anything else. Suggest that your attorney follow up on this, or you will definitely be out of luck.. Did your wife actually have the I-140 filed before that time? If not, and they return your petitions this week, hope that they at least accepted the I-140 and do not return all. Otherwise, the deadline for the submitting of the I-140 in order to have the I-485 submitted was July 31. And they are only accepting the I-485 up until the 17th of August.
And do not expect a green card soon, there are no visas available at this time. Immigration did not want to accept the petitions but were forced to, so expect that it will be at least a year from now at the earliest.
I know that you are anxious to get it, but if things would have been completed last year, you would be getting one now. But the retrogression has gotten much worse. And is expected to get worse.
Accepting of a petition will not speed things up at this time at all.
Just trying to be honest with you. I do not get paid for giving advice, but I have been proven to be correct many more times than not.
And next issue is that you wife just got approval on her new H-4 status this past week or so, so in that case, what was her actual status on July 2nd? If she was out of status, then you cannot adjust a visa either. She must have a current status on that date, and do not think that she did. Just because it was applied for does not necessarily make it current for her. That is the other thing that you have to deal with.
In the past when tourist visas were used for the AOS and there were visas available; the worst thing that anyone could do was apply for the extension of that visa. While there was a pending petition for the extension in process, they are unable to submit the I-485. It was not accepted then. Even if they had found an employer, not a thing could be done until they got official word on that extension. And if denied, then they had to leave the US, it could not be appealed to anyone. No matter if there was an employer to petition them.
The issue now becomes that you had a pending petition for her at that time as well, and not a current visa. She was waiting for approval on that, so no visa to be adjusted.
And I just got off the phone with some of my immigration consultants, and they told me that I have been 100% correct in the information that I gave you.
Seriously suggest that you follow up on this. And for sure you will be getting the I-485 petition returned, that was in the memo that was released on July 2nd. They stated that there were not accepting them and would be returning all that arrived then. They did not start to accept them until July 17th, any before are being returned.
jialif
8 Posts
My wife's H4 renewal was approved yesterday!
For those who didn't read my previous posts:
I and my wife are in H1/H4 status. We filed 485 based on her employment and got rejected in Jan, 2006 due to failure to submit VisaScreen. Since my wife used her EAD, her H4 status was considered invalid since then. But, we didn't do anything to rescue my wife's status. This June, when I tried to renew our H1/H4 status, the attorney from my company confirmed that my wife was out of status. But, we still submitted her H4 renewal. And, yesterday, our H1/H4 got approved.
Maybe it's just because we are lucky. To play safe, I still suggest to go back to home country to reapply H4 status if somebody is on H4 with EAD and 485 got rejected
Good luck!