On h1b spouse of LPR soon to become a citizen , i 485 denied

[vishwanr]

Iam a permanent resident who is eligible to apply for citizenship by july 2013. I applied for my wife's 485 as the priority date became current in january 2013. However my wife's 485 got denied with the reason that she had stayed without pay stubs on h1b for more than 180 days( her h1 is valid till sept 2013 ). My questions are as follows:

1 . If i get my citizenship on july and re- apply for my wife's green card all over again, will her i 485 be denied again?

2. The fact that she has been unlawfully present( more than 180 days on h1b without paystubs) trigger a 3 year ban and hence will not get i 485 approved, irrespective of being a spouse of a us citizen - is this statement true?

3. Should my wife leave usa immediately?

4. What other options do we have?

[pontevecchio]

You should give a Lawyer a call on Tuesday and go from there. Also she has not been unlawfully present based on your post.

[omshiv]

The correct word would be Out of Status and not unlawfully present. But regardless talk to an Attorney.

[redgreenbluee]

please consult a lawyer.

wait until you get your USC and re-apply your spouse, a USC can petition his/her overstayed spouse (not on LPR) if spouse has entered the country legally.

if your spouse leave US, her overstay may pose as a problem for her to return. better to stay and wait until you get your USC and petition your spouse afterwards.

Iam a permanent resident who is eligible to apply for citizenship by july 2013. I applied for my wife's 485 as the priority date became current in january 2013. However my wife's 485 got denied with the reason that she had stayed without pay stubs on h1b for more than 180 days( her h1 is valid till sept 2013 ). My questions are as follows:

1 . If i get my citizenship on july and re- apply for my wife's green card all over again, will her i 485 be denied again?

2. The fact that she has been unlawfully present( more than 180 days on h1b without paystubs) trigger a 3 year ban and hence will not get i 485 approved, irrespective of being a spouse of a us citizen - is this statement true?

3. Should my wife leave usa immediately?

4. What other options do we have?

[vishwanr]

Hi All

Thanks for the advise. We still do not know the reason for denial and we are assuming/guessing its becoz of out of Status on H1B. We came to know about the denial during Infopass appointment. The officer said they can see the status as denial and will be reviewed by the supervisor and then the notice would be mailed to us.

We are very tense and do not know the reason for denial.

What is the time line to obtain US citizenship if my husband applies now?

He completes 5 years only by mid august and i have my H1B valid until Sept end.

[t75]

She should not leave without a discussion with an attorney with family immigration experience after you receive the denial.

The immediate relative of a citizen category has different requirements than other categories. Read the USCIS document,

He may file 90 days before the date on his GC. The time to citizenship varies. At the time my SIL naturalized several years ago, the wait in her location was over a year due to the large number of qualified individuals. Everyone just has to get in the line.

[vishwanr]

We received the denial and its an error from officer. She has denied my I 485 saying i was out of status(no visa) from 2011 - 2012. This is such a shame on USCIS. We have presented all my H1B docs inspite of that the officer has misunderstood and denied my I 485. We are filing motion to reopen and hoping to get this issue resolved.

Any idea how long it will take to get a decision on motion to reopen cases if its USCIS error?

Can we take infopass and discuss this issue at the local office once MTR is filed?