Very Urgent.. H4 I-94 expired. 485 got denied. COS for H4 denied..

[narasimha]

Hi,

Could some one help me with my wife's case. Please please reply urgently we are tensed...

Here below I am giving you the details of my wife's H4…

1) She came to US in - Feb 2007 and got the visa and I-94 until - May 17 2008.

2) I have changed my employer in June 2007 and filed H1 transfer. At that time my employer did not file for H4 extension.

3) In July 2007, we filed, I-140 and I-485 for me and my wife.

4) On Nov 10 2008, we filed for my wife Change Of Status.

5) On Dec 5 2008, my I-140 got denied and also I-485 of mine and my wife got denied.

6) On May 6 2009, my wife's COS filed on Nov 10 2008, is denied. (Denial notice gives the reason as -- Your nonimmigrant status expired on May 17 2008 and filed this application on November 10, 2008. It is noted you have an I-485 Application to Adjust to Permanent Resident Status filed with USCIS. This filing allows you to remain in the United Status in period of authorized stay until a final decision has been made on your I-485 application. It does not however give you any type of valid nonimmigrant status)


I have questions,
1) What are the options we have?
(a) Filing appeal/MTR for COS denial
(b) Go to India and get stamped.

2) Does she come under - staying illegal for more than 180 days. Because
Her I-94 expired on - May 17 2008 . Her I-485 got denied on Dec 5 2008, means she automatically fall into her previous status i.e. H4 which was expired on May 17 2008.
OR
Is she staying legally, because she filed her COS on Nov 10 2008 before her I-485 got denied on Dec 5 2008 .

Thanks Very Much in Advance...

[txh1b]

There is no point in appeal for H4 extension denial as it is bound to get denied. No extension of stay is possible after the I-94 expired for a H4.
Her illegal stay would start from Dec 5th, denial of the 485.

There is some merit to the case though as when AOS is pending, one could choose to get back on non-immigrant status. However, it is not clearly defined as a law. One could re-enter on a visa to get back on such status.

She has been accumulating illegal stay since 485 denial. H4 stamping is the only option now. Consult an attorney.

[narasimha]

Thanks txh1b

Is it correct that she is illegal staying from Dec 5th onwards even thoug we applied for her Change Of Status on Nov 10th 2008 and COS is got denied few days back.

Thanks again..

[orion]

6) On May 6 2009, my wife's COS filed on Nov 10 2008, is denied. (Denial notice gives the reason as -- Your nonimmigrant status expired on May 17 2008 and filed this application on November 10, 2008. It is noted you have an I-485 Application to Adjust to Permanent Resident Status filed with USCIS. This filing allows you to remain in the United Status in period of authorized stay until a final decision has been made on your I-485 application. It does not however give you any type of valid nonimmigrant status)

Did you mean Mar 6th?
Why did not you extend her H4 before May 17th knowing that it is going to expire?

[narasimha]

Yes, it is Mar 6th 2009.

Thanks for pointing it...

[txh1b]

Thanks txh1b

Is it correct that she is illegal staying from Dec 5th onwards even thoug we applied for her Change Of Status on Nov 10th 2008 and COS is got denied few days back.

Thanks again..

Some service centers have their own interpretation as there is no *law* surrounding this. It is all memo based and it can be iffy. You need to consulat an attorney.

As mentioned earlier, your case has some merit but it looks like you applied for a H4 extension based on an impending RFE on the 140. Only an experienced attorney can say what is the best option. Do not waste time though.