Need some advice

[unc7uth]

Hi All,

I need some advice from people on this forum.

I applied for I-140 EB1-OR and got it approved on March'2011.

During this time, my company law firm extended my H-1 in Jan-2011. Unfortunately, lawyer forgot to extend H-4 of my wife and her I-94 and H-4 visa expired on Jan 9th 2011. We detected this in April while filing I-485 for my wife. So, this was a violation (not in status) for about 3 months.

At this point, one option was that we could have gone outside USA and tried to get H-4 stamping for her. Lawyers suggested that violation is less then 180 days and hence, She will not have problem in I-485 approval and they would use 245(k) clause. Also, lawyers said if H-4 stamping in home country is denied she cannot come back to USA and I-485 filing cannot be done as it need her to be in USA.

Lawyers went ahead and filed for I-485 for me and my wife and also filed EAD for my wife. We have received the receipts for same.

Now, my question is :

Should I go ahead and file H-4 extension using nunc-pro-tunc (NPT) (legal term in Latin, meaning "now for then").

A/to lawyers, this is not needed as she will get Green card and her I-485 will go through. Also, they are saying that with nunc-pro-tunc based H-4,

USCIS may require my wife to go back and get her H-4 stamping done.

I would really appreciate if you could give information and share your experiences in this matter.

Regards,

VS

[Belle]

See if 245k works first. It appears that your wife's I-94 may have expired, which is not the best news, but maybe the lawyer will be able to pull 245k defense on it. If this does not work, file nunc pro tunc (see if they can file NPT and refile I-485 together). If she has to go for stamping, then it is what it is, she has to go. By the way, by that time you may be able to file following to join for her for consular processing. That's your last option.

[unc7uth]

Belle,

Thanks a lot for your response.

yes her, I-94 is expired.

01/16/2011 : H-4 and I-94 expired

I-485 and I-765(EAD) receipt notice on 04/14/2011.

My worry is because: If I-485 is denied, then on 07/16/2011, she will complete 180 days of violation and that may cause problem during refiling of I-485 and getting H-4 stamping. So, I have to file for H-4 extension with NPT (nunc-pro-tunc) before that (?). Could you please confirm.

Could there be potential problem if 180 days are exceeded in these circumstances ?

But, as you suggest, it is better to wait and see I-485 with 245(k) works or not (?). Is that just to avoid her to travel (as she may need to be present in US for interview) ? and filing NPT now may trigger USCIS to ask her to get stamping done ?

When do you suggest to start "Following to Join - Consular processing" ?

Thanks again,

VS

[unc7uth]

One more question I have is :

Can filing extension using nunc-pro-tunc forces her to return to India to apply for an H-4 visa stamp.

If so, I would try to avoid it and wait to see if I-485 +245K works or not, until I am close to 180 days.

Thanks,

VS

[Belle]

"So, I have to file for H-4 extension with NPT (nunc-pro-tunc) before that (?). Could you please confirm."

I honestly don't know exact answer. My guess is probably not, since the petition is in a way backdated. I would call a couple of qualified lawyers to confirm. I know a couple of Murthy lawyers expressed an opinion here that I-94 expiration date for H4 does not matter under 245k, but I would still be careful. The USCIS does pay a lot of attention to I-94 expiration date. Here second/supporting strategy is to blame the old lawyer who did not file H4 extention. The lawyer dropped the ball big time.

"Could there be potential problem if 180 days are exceeded in these circumstances ?"

I think so. First, you need 180 days for 245k. If that does not work, your wife may have issues at the consulate since technically, she was not out of status - she was illegally present for over 180 days, and thus there is a 3 year bar. You should try to exclude any time her I-485 or nunc pro tunc was pending, since during that period she is in authorized presence.

"But, as you suggest, it is better to wait and see I-485 with 245(k) works or not (?). Is that just to avoid her to travel (as she may need to be present in US for interview) ? and filing NPT now may trigger USCIS to ask her to get stamping done ?"

You can do both simultaneously. If 245k does not work, she may go for H4 stamping. If her I-485 is pending, there is no need to go abroad. The need to go abroad only arises if she is put in removal proceedings or she wants to go for voluntary deportation (I have heard that the second one may clear her of admissibility bars in some cases, but I would not do it without help of a very good lawyer).

"When do you suggest to start "Following to Join - Consular processing" ?"

You can only do it after your I-485 is approved. If the situation does not clear by then, you might as well do it. It does not impact her ability to have a pending I-485 or refile one.

Again, check everything with a lawyer and maybe a couple of good lawyers. This is one of those situation that may turn to be a total pain in the back or may resolve quickly and efficiently with the right strategy.