Am I out of status ?

[DEREKCH]

What is the name of your state? Nebraska
I entered the US on an F2 while my husband was on F1 / OPT valid until 7July 04.

On 15-Feb-04 my husbands H1 was approved. For some reason the lawyer forgot to file my COS to H4 at that the time my husbands H1 was filed. He filed it on 15-May and we have the receipt. Its taking over 5 months for LIN to process COS to H4 - hence I awaiting COS approval.

1) Am I out of status ? Whats should I do ?

2) I have a H1 job offer. I have filed is as a Consular processing. When I go for an interview will the above event cause problems ?

Advice is appreciated.

 

[DEREKCH]

Some research.....

I have been digging extensively into the web and here's what I have found, which gives me SOME hope.

Those entrants who do not have a date on their I-94, but are instead admitted for the duration of status (primarily students and spouses like me) do not accrue unlawful presence until the INS rules that they have violated their status.

Another one...

An applicant who was formally admitted or paroled into the US and timely files an application to extend or change their status is given a 120 day grace period following the date on the I-94 during which no unlawful presence will accrue.

These are on : http://www.visalaw.com/01nov3/12nov301.html

Could some knowleadgeable person provide guidance ?

 

[ImmigAttyLana]

You fell out of status on the date your husband's H-1 was approved because after that date you could no longer be in F-2 status. You really just should have departed the US and consular processed for the H-4 on the basis of the approved H-1B petition rather than file a change of status to H-4 two months later. The change of status is unlikely to be approved as a change of status and this is a waste of time to wait for the USCIS decision, in my opinion. The lawyer should have advised you to just do the consular processing for the H-4.

As for the H-1B, if it is approved and you go for the interview, I do not know whether they will want to have proof that you have not overstayed and indeed, you want to make sure with your attorney that you are not accumulating unlawful presence since if you are, going outside the US for the consular interview may cause you to trigger the bar to reentry.

 

[DEREKCH]

Tnx Atty Lana ! Here's some more....

I found some more information:

A. Duration of Status Cases: Although most non-immigrants are admitted for a specified period of time, students, exchange visitors, information media representatives ("I" visa holders), and holders of certain diplomatic visas are usually admitted for "duration of status" (D/S).

An alien admitted for "duration of status" will begin to accrue unlawful presence only if either:

* an Immigration Judge (IJ) finds the alien has violated status and is excludable / deportable / removable

* the INS, in the course of adjudicating an application for a benefit (e.g., extension of stay or change or adjustment of status), determines that a status violation has occurred."

D. Alien Admitted for D/S Who Violates Status:

(II) Alien admitted for duration of status, violates status, e.g., by working without authorization, is out of status for any period of time, applies for a change of status (COS), which INS denies on the ground that alien was out of status. Unlawful presence begins to accrue the date of the denial. The alien departs voluntarily on his own prior to commencement of removal proceedings 180 days or less after INS decision: not subject to 9B because alien did not accrue more than 180 days of unlawful presence after INS decision; however, alien is subject to 222(g).


It looks like from the above that unlawful presence starts only after the INS denies the application. Would you agree ?

I will certainly consult my lawyer. My intention is to depart before a decision is made.

You help is appreciated.

 

[ImmigAttyLana]

But even if you are not accruing unlawful presence, you are still violating your status so you are not eligible for a change of status. So I still don't understand why you did not just go for consular processing in order to change status to H-4.

 

[DEREKCH]

That was an Attorney oversight.......

I had no idea of this violation until Friday.

I am planning to leave the US ASAP and apply for an H1 at my home country.

My concern now is can a lawyer intervene on my behalf should there be problems at the consulate ?

 

[ImmigAttyLana]

Depends on what the reasons for wanting to deny the H-1B visa are. A lot of it is in the discretion of the consular officer and is not subject to appeal although often an attorney's presence can be helpful.

 

[pepper2004]

Derekch,
You seem to insist that you are not accruing unlawful presence because no officer has denied any application of COS for being out of status. If you are out of status you do not qualify for COS and hence the COS will be denied. Your concern is being able to get the H4 status, which you will have to do at the consulate.

Acrrual of unlawful presence comes into play when (for most people) the issue of the 1year/10year bar is relevant. Hence, if you continue to stay here and insist on applying for the COS and you are denied based on a finding that you are out of status then you unlawful presences will accrue and then you will be barred from returning to the States.

 

[DEREKCH]

Please don't get me wrong.....

While it is true I am trying to say that I am not accruing unlawful presence yet, it is not my intention to get a COS within US. And that's the reason I am planning to leave the country in a week or so - BEFORE any determination of my being out of status is made by INS. I believe a COS application is also considered abandoned if one departs before a decision is made.

My worry is what happens at the Consulate when I apply for a H1? Will they dig to determine I was out of status ? Or will they focus on the merits of my H1 petition ?

 

[ImmigAttyLana]

They will not focus on it but they may and probably will ask you about it so you must have a ready explanation. It really does not matter at this point since there is nothing you can do about it other than prepare yourself with a legitimate explanation. You HAVE to leave the US in order to consular process, so the best strategy is to do so as soon as possible and equip yourself with the documentation necessary to show a strong basis for the H-1B and have an explanation as to the time out of status should the question come up.