H4 renewed after not getting a contract for more than a year

[arun123450]

Hi,

My wife entered the country on H4. After few months she applied for H1B through a consulting company and her H1B was approved. She tried to get a contract for more than a year but was unable to find anything. My H1B was up for renewal and my attorney suggested that I renew my wife's H4 before it expires...so we did it. So my wife has renewed her H4 twice since her H1B was approved but we didn't mention that her H1B application was approved in the H4 renewal application since she never received a paycheck.

My question: WIl this be an issue when I apply for GC?

My wife's consulting company folks told us that this is a normal process and since she never got a contract her status never changed to H1.

Thanks

[Joe.F]

Did the H1 approval notice have an I-94 at the bottom?

If so, she has been out of status, since she would have been in H1 status.

The consulting company is clearly shady. What they said is completely wrong.

The I-94 is what matters, NOT some contract. If she was on H1, she had to get paid, client contract or not. A person on H1 has to get paid ALL THE TIME, even on bench. That's the law.

I suggest discussing this with your lawyer. And be absolutely open with your lawyer. Do NOT hide anything. It would only make things worse.

[arun123450]

Yes, the H1 had an I94. But her original H4 had not expired when we got it renewed. Is she still out of status?

I am going to be the primary GC applicant. Does USCIS go into the secondary applicants status history during the GC process?

[Joe.F]

Originally posted by arun123450:

Yes, the H1 had an I94. But her original H4 had not expired when we got it renewed.

The old I-94 becomes invalid when the new one kicks in.

Is she still out of status?

Yes. She is on H1 and has to get paid for ALL THE TIME on H1.

She should file a complaint with DOL on form WH4 to get the money that is owed her.

I am going to be the primary GC applicant. Does USCIS go into the secondary applicants status history during the GC process?

Your wife may not be able to file an I-485 because she is out of status. That has no effect on you.

[arun123450]

Thanks for your prompt replies.

I am going to get a lawyer and talk to them about my wife's case. However, I am very anxious about the situation we are in and want to know what could happen in future: will she be deported? have other people had similar issues and what happened to them?

[Desi Dude]

You intentionally chose the wrong path. You are on H1B so you know how it works. That is illegal. Bored Housewives applying for H1B and sitting for years to get a contract was one of the reasons why things are so messed up now and the scrutiny is so high coz of you people.

And then you guys complain why is USCIS is so strict and why are they asking so many questions during visa stamping.

[arun123450]

Well I don't know about the "intentionally choosing the wrong path" and the "bored housewife's" part. Like I mentioned in my 1st post we pretty much did what the consulting firm guys and my company lawyer's suggested. At no point did we want to do anything illegal. And as far as the bored housewife part is concerned, my wife is as qualified as most people who have received H1 and that have been working legally. The problem is that the economy was not doing well so she didn't get any contracts.

Anyways, as per JoeF's suggestion I spoke to an immigration attorney today. He told me that as long as my wife was not on the consulting company's payrol we should be fine. We can say that we didn't accept the position. We also renewed the H4's regularly.

JoeF, you sounded very confident in your response, so I am wondering if I should double check with another attorney?

[t75]

Having an I-94 for H1B that was not superceded by an I-94 for H4 and not working can certainly be an issue for GC processing. How it will be actually treated is just a guess by any forum member

Be sure your attorney is a member of AILA and has good rating through peer review.

[Joe.F]

Originally posted by arun123450:

Anyways, as per JoeF's suggestion I spoke to an immigration attorney today. He told me that as long as my wife was not on the consulting company's payrol we should be fine. We can say that we didn't accept the position. We also renewed the H4's regularly.

JoeF, you sounded very confident in your response, so I am wondering if I should double check with another attorney?

Unfortunately, there are lots of bad lawyers out there... That particular lawyer apparently is rather clueless.

The I-94 and ONLY the I-94 matters. If the I-94 says H-1B, the person is in H1 status and has to get paid. If the person didn't accept the position, the person would then immediately have to change to another status, to avoid falling out of status on H1. Not accepting a position doesn't mean the person isn't on H1...

Talk to a better lawyer.

As far as "you renewed the H4", that depends. Again, the I-94 is what matters. When the H4 got renewed, did she get a new I-94 that said H4 on it? If she was out of status on H1, an H4 renewal then may have been in error, and CIS could possibly revoke that.

It is way safer to travel abroad, and then reenter with an H4 visa, since that can set things back to 0.

But again, talk with a better lawyer.