Need help!!

[SirLancelot 1]

My main reason for pushing this, is because I don't want to see your husband travel on his H-1B and get banned from re-entry because of his period of out of status. Employers are required to report to UCSIS when they terminate an H-1B employee, so it is likely that he would be flagged if attempting to use his H-1B to travel.

Ok Doc, so we're back at this again.

Why is this "out of status" such a big deal to you when all K-1 visa holders who file even 5 years "out of status" is completely ok with you? Especially considering that the OP's husband is applying for AOS based on a marriage, just like a K-1 filer.

I think it's a completely inconsistent stand you're taking. If you were consistent you'd be as adamant about this with K-1 filers who file after their I-94 has expired.

The OP never mentioned anything about her husband traveling. I highly doubt her husband is planning on leaving US soil at all unless physically deported. I think the OP is concerned about his official status for the purpose of present and future immigration applications. I believe the OP is concerned whether her husband's current status is "out of status" or not.

He may be out of status as you say given that he's no longer employed, but so what? You seem to insist it's perfectly fine with regards to K-1 filers who AOS based on marriage. So why would a H-1B visa holder who AOS based on marriage would be treated any differently?

At least I'm consistent and regard all "out of status" as something that needs to be dealt with immediately, not non-nonchalantly as so many on here when giving advice to K-1 visa holders.

OP, I'd recommend filing an appeal right away and amending the appeal later on when you find out the details of the denial notice.

Actually, I'm curious what the lawyer suggested? In giving you these options, did you ask what her advice is? If she was in your place, which option would she use?

[Killer_Clown_2009 0]

That's right, 30/60/90 day is not something that USCIS uses. Also, Immigration case law (and also guides that they DO use) show that USCIS doesn't deny a marriage based AOS application on intent to immigrate alone. Are you sure she was not denied for marriage fraud? Meaning they did not think that her marriage was legitimate. Still it's odd they would not have her in for an interview.

Edited August 25, 2007 by jane2005

[Dr_LHA 3]

SirLancelot, allow me to quote myself from earlier in this thread:

You keep mentioning his visa validity until October. The key issue is his I-94 expiration, not his visa expiration.

With H-1B, visa validity and I-94 validity are the same. However if the person loses their job, then both the H-1B and the I-94 are no longer valid, the person is out of status and is required to immidiately leave the USA. However as the person filed AOS through marriage to a US citizen, their out of status is not going to be the issue here, so I-94s and H-1Bs are red herrings here.

I am not saying that their out of status is an issue in this case. I'm simply pointing out that they are out of status. I would have thought you would have been in favour of me explaining to people what their current status was?

I am not "taking a stand" against people being out of status, I'm simply pointing out to them that what they are being told about their status is incorrect. Don't you think its important to understand what one's current legal status in the USA is?

How about actually reading a thread before going off half-cocked on some rant? Ta.

Edited August 25, 2007 by Dr_LHA

[Nancy2015 2]

The OP never mentioned anything about her husband traveling. I highly doubt her husband is planning on leaving US soil at all unless physically deported. I think the OP is concerned about his official status for the purpose of present and future immigration applications. I believe the OP is concerned whether her husband's current status is "out of status" or not.

This is exactly why it is important to point out that the lawyer who says the OP's husband is not out of status is incorrect. And Dr_LHA did just that.

[Killer_Clown_2009 0]

There is a difference between being out of status and being unlawfully present. Being out of status is not enough for a person to accrue days towards any reentry bar.

"There is a critical difference between being "out of status" and being "unlawfully present." There are innumerable ways to go out of status. Any violation of nonimmigrant status puts the alien "out of status." For example, if an alien is in a nonimmigrant status, such as H-1B or TN, that requires him to work exclusively for the petitioning employer, and he either works for an additional employer or changes employers all together without prior authorization from USCIS, then he goes out of status upon the first such violation. An alien who ceases employment with the petitioning employer (other than an H-1B employee who is benched with pay) is also out of status. The dependent child of a nonimmigrant who turns twenty-one (and is therefore no longer eligible for dependent status as a "child"), is out of status.

"Unlawful presence," on the other hand, has a very specific meaning. An alien begins to accrue unlawful presence only when:

(1) her I-94 has expired and she failed to timely file a non-frivolous request for extension or change of nonimmigrant status.

If she has timely filed an extension of stay or change of status, then she does not accrue any unlawful presence, even after her I-94 expires, for as long as the petition remains pending. If that petition is ultimately approved, then she never acquires any unlawful presence. If it is ultimately denied, then she accrues unlawful presence starting on the date the denial notice is issued; or

(2) USCIS or an Immigration Judge finds that the alien has violated her status."

Source: http://www.usvisahelp.com/art_thebras.html

Edited August 25, 2007 by jane2005

[rebeccajo 14]

There is a difference between being out of status and being unlawfully present. Being out of status is not enough for a person to accrue days towards any reentry bar.

"There is a critical difference between being "out of status" and being "unlawfully present." There are innumerable ways to go out of status. Any violation of nonimmigrant status puts the alien "out of status." For example, if an alien is in a nonimmigrant status, such as H-1B or TN, that requires him to work exclusively for the petitioning employer, and he either works for an additional employer or changes employers all together without prior authorization from USCIS, then he goes out of status upon the first such violation. An alien who ceases employment with the petitioning employer (other than an H-1B employee who is benched with pay) is also out of status. The dependent child of a nonimmigrant who turns twenty-one (and is therefore no longer eligible for dependent status as a "child"), is out of status.

"Unlawful presence," on the other hand, has a very specific meaning. An alien begins to accrue unlawful presence only when:

(1) her I-94 has expired and she failed to timely file a non-frivolous request for extension or change of nonimmigrant status.

If she has timely filed an extension of stay or change of status, then she does not accrue any unlawful presence, even after her I-94 expires, for as long as the petition remains pending. If that petition is ultimately approved, then she never acquires any unlawful presence. If it is ultimately denied, then she accrues unlawful presence starting on the date the denial notice is issued; or

(2) USCIS or an Immigration Judge finds that the alien has violated her status."

Source: http://www.usvisahelp.com/art_thebras.html

Jane, the first sentence of your post confuses me.

First off I want to thank everyone that has posted something in a positive manner and that has helped me out with my questions. Second off I want to say something, for the people posting that they have had enough of me I have one thing to say if that is the case then stop reading the post and stop replying! Is that so hard we are all adults here and the only reason we are on the site is to try to help each other go through a process that we are all going through. I appreciate all of the answers and suggestions that I have gotten from everyone whether or not they helped or didn't. I appreciate the time that these people went and the concern that they expressed. But as for the people who have made these comments about being sick of me or my post then again stop reading them!!! And I'm sorry if this offends anyone but we are all adults and should act like them.

Now back to my immigration issues, we have a appointment with a lawyer tomorrow and hopefully that will shine some lite on our case and help us get a reason for the denial. Also regarding the person (sorry I dont remember who) that posted regarding contacting a Congressman thanks and I have already contacted our local congressman and talked to a case worker in his office. They told me that they would be able to find the reason for the denial but also like us it could take them up to 30 days for USCIS to respond back to them. They don't have any special contact that allow them to get a answer ASAP. But again thanks for the advice and hopefully they can help us out should we need it. Again thanks for everyones help and time.

Melissa

My comments were not directed towards you but at beckypau. Sorry for the misunderstanding.

[Killer_Clown_2009 0]

It looks pretty understandable to me. What is it that you don't understand? Did you read the above posts about being out of status? I was clarifying that being out of status alone is not enough to trigger a reentry bar.

Edited August 25, 2007 by jane2005

[misa 2]

In reference to Magnolia's friend, not the OP. I hate to derail the OP's thread but I'm very curious about this.

I suppose they put 2 and 2 together when they saw that she entered the US on may 7th and then filed AOS almost immediately after. I guess it looked fishy to them. I don't know but this is exactly what happened to her.

Not that it's an issue anymore but I wonder if they put 2 and 2 together with the marriage certificate (I know that some states the marriage license and certificate are the same document or it states on the certificate when the license was issued) as well as what date the G-325As and other documents in her application were signed... She didn't sign and date them BEFORE she got there did she?

[rebeccajo 14]

It looks pretty understandable to me. What is it that you don't understand? Did you read the above posts about being out of status? I was clarifying that being out of status alone is not enough to trigger a reentry bar.

Maybe I'm just being dense.

If you are out of status long enough (past 180 days) how is it the bar does not kick in?

I get there is a difference between unlawful presence and status, but certain actions within either category can incur the bar - no?

PS - I'm not picking at you. I'm honestly trying to see what you are saying.

In reference to Magnolia's friend, not the OP. I hate to derail the OP's thread but I'm very curious about this.

I suppose they put 2 and 2 together when they saw that she entered the US on may 7th and then filed AOS almost immediately after. I guess it looked fishy to them. I don't know but this is exactly what happened to her.

Not that it's an issue anymore but I wonder if they put 2 and 2 together with the marriage certificate (I know that some states the marriage license and certificate are the same document or it states on the certificate when the license was issued) as well as what date the G-325As and other documents in her application were signed... She didn't sign and date them BEFORE she got there did she?

Misa, I have a feeling there is more to Magnolia's friends case than we are getting. Probably more than she is telling Magnolia even.

[Magnolia31 0]

Yes, they got married 3 days after she arrived. It was just all done way too early. I'm glad you emailed the Ombudsman.

I apologize about my other post yesterday. I am just a really big crank lately - no excuse but it's true. I'm sorry.

I suppose they put 2 and 2 together when they saw that she entered the US on may 7th and then filed AOS almost immediately after. I guess it looked fishy to them. I don't know but this is exactly what happened to her.

That is VERY interesting, and probably does make sense about filing so soon after they married. Also it sounds like they married very shortly after she arrived. May have been another red flag for them.

I appreciate you posting this, as it may help us advise people in the future.

And I DID email the ombudsman, too.

[TracyTN 237]

Yes, they got married 3 days after she arrived. It was just all done way too early. I'm glad you emailed the Ombudsman.

I apologize about my other post yesterday. I am just a really big crank lately - no excuse but it's true. I'm sorry.

I suppose they put 2 and 2 together when they saw that she entered the US on may 7th and then filed AOS almost immediately after. I guess it looked fishy to them. I don't know but this is exactly what happened to her.

That is VERY interesting, and probably does make sense about filing so soon after they married. Also it sounds like they married very shortly after she arrived. May have been another red flag for them.

I appreciate you posting this, as it may help us advise people in the future.

And I DID email the ombudsman, too.

Thanks. We all have bad days - I think immigration does it to us! I appreciate the apology.

As for the story about your friend - poor lady! Kind of a 'what NOT to do' story for all of us to remember, eh?

[Magnolia31 0]

Hmm, that's what she told me. Maybe there are other issues involved that she did not say. I just know that she came back to Germany rather quickly and is now waiting for her husband to come back to Germany because she cannot come back to the states again. All the information I have posted here came directly from her.

She told me that someone specifically told her from USCIS, that she got denied because it is apparent that she came here with intentions of getting married and immigrating to the US. They told her that this is NOT allowed and therefore, her application got denied. This is all I know! If it seems strange, i dunno. I have never been in this situation so I do not know. I believed her because she's never lied to me about anything else before.

One more thing, in my friend's case, they applied the 30/60/90 day rule. Supposedly, had she filed for AOS after 90 days, her intent would have never been questioned. She filed way before 30 days.

NOT necessarily true! My friend came here last summer with the intent to marry. She got married and went and filed for AOS. Her applications were also denied without ever having had an interview! She is now back in Germany.

I'm curious... what was the basis of denial in your friend's case? Was her I-130 also denied or is it still pending?

Well thats interesting because the 30/60/90 day rule does not exist... it is a guideline that immigration lawyers tell people about but USCIS do not use such a rule.... if they did I would not have been approved from my Greencard....

Kez

[misa 2]

You know, I just want to say that I am SO FREAKING GLAD I did not do what your friend did and found VJ before doing anything. I had numerous people tell me, "You're Canadian, you're allowed to just move there and then apply." Um, no... doesn't quite work that way.

Immigration stuff is stressful enough. If I had entered with intent to stay (which I obviously didn't), I probably would have crumbled at my AOS interview.

[Killer_Clown_2009 0]

I know that you aren't. You might want to go read this source: http://www.usvisahelp.com/art_chgstatus.html, maybe that will explain it better. Basically a bar is triggered by "unlawful presence". Anyone with is unlawfully present is the US is also "out of status", but you can be "out of status" without being "unlawfully present". So just being "out of status" alone doesn't result in a bar.

". An alien is deemed unlawfully present if s/he “is present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled. ” All aliens who are unlawfully present are also out of status, but not everyone who is out of status is unlawfully present. Therefore an alien who is unlawfully present can incur all of the consequences listed above for someone who is out of status. In addition, aliens who are unlawfully present are subject to 3- and 10-year bars from admission to the U.S. That is, any alien who is unlawfully present for over 6 months and then departs the U.S. will be barred from re-entering the U.S. for 3 years. Any alien who is unlawfully present for more than 1 year and then departs the U.S. will be barred from re-entering the U.S. for 10 years ."

In my own situation, I had stayed in the US for more than 200 days past the date that I was supposed to leave. I was considered "out of status", but not unlawfully present as I did not meet the 2 conditions in my earlier post for "unlawful presence". I could have left the US and then reentered without triggering a bar. This doesn't apply to most tourists in the US, because they will fall into unlawful presence once their I-94 expires, but because I did not have an I-94 or definiate departure date, I was considered to be "out of status" only.

Edited August 25, 2007 by jane2005

[rebeccajo 14]

I know that you aren't. You might want to go read this source: http://www.usvisahelp.com/art_chgstatus.html, maybe that will explain it better. Basically a bar is triggered by "unlawful presence". Anyone with is unlawfully present is the US is also "out of status", but you can be "out of status" without being "unlawfully present". So just being "out of status" alone doesn't result in a bar.

". An alien is deemed unlawfully present if s/he “is present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled. ” All aliens who are unlawfully present are also out of status, but not everyone who is out of status is unlawfully present. Therefore an alien who is unlawfully present can incur all of the consequences listed above for someone who is out of status. In addition, aliens who are unlawfully present are subject to 3- and 10-year bars from admission to the U.S. That is, any alien who is unlawfully present for over 6 months and then departs the U.S. will be barred from re-entering the U.S. for 3 years. Any alien who is unlawfully present for more than 1 year and then departs the U.S. will be barred from re-entering the U.S. for 10 years ."

In my own situation, I had stayed in the US for more than 200 days past the date that I was supposed to leave. I was considered "out of status", but not unlawfully present as I did not meet the 2 conditions in my earlier post for "unlawful presence". I could have left the US and then reentered without triggering a bar. This doesn't apply to most tourists in the US, because they will fall into unlawful presence once their I-94 expires, but because I did not have an I-94 or definiate departure date, I was considered to be "out of status" only.

Oooooooooooooooooooh. I get it now.

That's a circumstance that's not going to apply to most non-USC's though. Probably only Canadians?