H-4 B denied, H-1b Pending

[supender]

Hi, On July 1, 2008, I received LUD that my I-129 got approved but my wife's I-539 got denied. We have not received denial notice yet, so we dont know what really happened.We both are in united states , our petitions were filed on 21 feb 2008 and I got RFE for pay stubs and companies financial documents. Which my company replied.Our prior H-1 b and her H-4 B were valid till 15 may 2008.The catch is she has an H-1 B petiton pending (receiving date 4/24/2008).I really dont know if she should leave the country immediately and then proceed with appeal or FILE PETITION FOR RE OPENING.I have left several messages on my lawyer answering machine, but have not heard back .Please help. I am lost.

[txh1b]

If she has an expired I-94, she might be accumulating unauthorized stay. A pending petition gives an authorized stay period but not a status. You should be careful and not accumulate more unauthorized presence. It is unreasonable for a H4 to be denied while the H1 gets approved. Get hold of your employer and lawyer. If all else fails, she should go out and return with a new H4 stamping.

[supender]

Thanks for the reply, If needed can she get her H-4B stamped in mexico.

[txh1b]

She could. But if her I-94 already expired, you will be risking it with further delays.

[supender]

I find out from my companies lawyer today that my I-129 petiotion has been approved but my change of stus application has been denied. attorney is recommending to file Motion to reopen since he is confident we will win motion to reopen.He told me it wont be a good idea to leave US and get mine and my wife's visa stamped in India instead.According to him per USCIS technically we are out of status since Dec 2007. And he thinks it can be interpereted as 3 year ban by visa officer in India.

Please read for details of events between dec 2007 to today.

" We left for India on 8 dec 2007, I talked to my prior employer and e mailed them before We left.I was Okayed,verbally for unpaid personal leave of absense till 13 feb 2008,we came back to US on 16 jan 2008 and I told my company I still needed vaccation to settle mY WIFE and needed time off before I started work back. They issued ME a letter for Unpaid leave granting on 19 feb 2008 stating clearly they are approving his personal unpaid leave of absense starting 8 jan 2008 and ending 25 feb 2008.Meanwhile I got new H-1b petiotion, miy wife's H-4 B petition, and our change of status petition filed on 21 feb 2008 by a new employer.I joined work with new employer on 22 fb 2008.mY services were terminated by THE prior employer on 25 feb 2008.
We got RFE on 28 may 2008 asking for pay stubs from prior employer for last 3 month, present employer for 3 months , besides many other things.My attorney filed Reply to Rfe with explaination letter, Leave granting letter from prior employer and pay stubs from sept 2007 to Dec 2007."

My attorney would also be filing Motion to reopen for my H-4b Visa. As I have mentioned before my wife's H-1B visa petition is already pending.I dont know if I should trust him annd let him file for Motion to reopen or immediately leave country.I am in a fix,since I got this lawyer, nothing has gone right.Plz help..................

[txh1b]

USCIS has interpreted your LOA letter as bench without pay situation and considered you out of status and hence did not approve your EOS. Your attorney is right. If a person was not on payroll, he is not eligible to use AC21 and join a new employer and will be considered out of status from that time.

I don't think a MTR or Appeal will render success in your case. No harm in trying as the harm has already been made.

[supender]

Thanks for your reply.Our major concern is taking our 19 month old daughter (who is a U.S citizen) to India .The hot weather in India would make her really sick ,she was even hospitalised on our last visit to India.We don't even know what's her status in India and how long she can stay there .Is there any worthwhile appeal that can be filed based on extreme hardships.

what are the chances of getting the visa in India if the MTR is denied

[supender]

The other thing our lawyer told us is that if MTR is denied ,we won't be considered out of status from dec 2007 but instead from the date of MTR denial .We should leave the country rght then,that would improve our chances of facing 3 year ban.Does that sound right to you.

[txh1b]

The other thing our lawyer told us is that if MTR is denied ,we won't be considered out of status from dec 2007 but instead from the date of MTR denial .We should leave the country rght then,that would improve our chances of facing 3 year ban.Does that sound right to you.

No, it doesn't sound right. During MTR/Appeal, you cannot work and if denied, you will be considered out of status from the date of initial denial of the petition and if it was an improper use of AC21, from the date of violation of H1b rules which in your case would be since you entered US. This is from my understanding.

[txh1b]

Thanks for your reply.Our major concern is taking our 19 month old daughter (who is a U.S citizen) to India .The hot weather in India would make her really sick ,she was even hospitalised on our last visit to India.We don't even know what's her status in India and how long she can stay there .Is there any worthwhile appeal that can be filed based on extreme hardships.

what are the chances of getting the visa in India if the MTR is denied

There is no such extreme hardship cause for temporary immigrants. Your child can only stay in US by virtue of birth as per the law.

As far as staying in your home country, this should help.

http://www.airportsindia.org.inhttps...aextension.jsp

[supender]

I can't thank you enough for your timely advise.Do you have any memo that discusses Working while MTR is pending.I am working right now as my attorny's advice.Secondly you mentioned that I would be out of my Status since re-entry to US after my vaccation, That would still leave me with 6 more days before the 6 months period expires.That means I still have a chance to save myself before I face 3 years ban.If you can , please provide me with any memo regarding that, I can talk to my lawyer and leave country before 16 July 2008.I really appreciate your advise.

[txh1b]

I have read this from the chatlogs of a famous immigration attorney. If you know who I am talking about, search for H1b Denial in the chatlogs and you will see that work is not allowed on a Appeal or MTR unless the decision is reversed by USCIS and they approved the H1b retroactively.

There definitely must exist a memo or policy guidance on this issue but I don't have time to dig into that. You can look it up on USCIS website and if you find it, post it on this thread for future reference.

[supender]

I will definately try to find memo on USCIS site n will post in here for further references.

you mentioned that I would be out of my Status since re-entry to US after my vaccation, That would still leave me with 6 more days before the 6 months period expires.That means I still have a chance to save myself before I face 3 years ban.If you can , please provide me with any memo regarding that, I can talk to my lawyer and leave country before 16 July 2008.I really appreciate your advise.

[txh1b]

Don't just trust your lawyer. Get a second opinion or a third if needed.

[supender]

An Update,
Tx( Sir/Madam), I took your advise,talked to another lawyer,Both lawyers agreed, Out of status and unlawful presence are two different things.My start date of Unlawful presence can be interpereted differently by different visa officers.Both of the lawyers told me it can either be 15 may 2008 or 1 July 2008 depending on how it is interpereted.Thus hopefully saving me from 3 year ban.After thinking and consulting them I am leaving for India on 17 July 2008, go to consulate there and not filing MTR.I plan to take my chances at India.MTR might take a long time, I can't work during that time and at this stage even if I ask my company to file MTR they might chicken out.So I am keeping my fingers crossed. Whoever reads this,please keep me,my wife and our 18 month old daughter in your prayers.I will keep everyone posted.