-- Posted 8/11/05--
Q- I am here on an H1 (husband) and H4 (wife). These visas expired on February 2004, and an application for extension was timely filed. On April 1, 2005, we received a notice of denial. This denial has been appealed in a timely fashion. However, in May 2005 my wife applied for a change of status from H4 to F1 (she has been in university for 3 years on the H4). We have received a letter denying the application on the basis that since we have an appeal pending, we are "out of status" and considered in a "period of stay authorized by the Attorney General." I have also got an ETA 750 filed in April 2001. My wife is pursuing a nursing degree. My question is what are our options if a) my appeal (H1 extension) is approved, more importantly if the appeal is denied, what are our options? We have a baby and another one on the way...
A-On April 1, 2005, the date on which your timely-filed extensions were denied, you and your wife began to accrue "unlawful presence." The fact that you had a timely filed appeal pending does not change this. If you accrue 180 days of unlawful presence, and then leave the US, you will not be able to return to the U.S. for 3 years. If you accrue 365 or more days of unlawful presence, and then leave the US, you will not be able to return to the U.S. for 10 years.
Because you are out of status, you do not have any legal basis for changing or extending your status. (That is why your wife's change of status to F-1 was denied).
The conundrum you are in now is this: that if you leave the US to avoid accruing the 3 or 10 year bars, you abandon the appeal of the extension portion of your H-1 denial. (The appeal will continue to pend and will be decided, but if you leave the US and the appeal is decided in your favor, you won't be able to reenter the US until you get an H1B visa and reenter using the H-1B approval). On the other hand, if you stay here and wait for the appeal to be decided, one of two things could happen. If you win the appeal, then your H1 approval will be back-dated to the date you requested for the petition to become effective. If this happens, then even if you have accrued the 3 or 10 year bars, they will be in effect "erased." On the other hand, if the appeal is dismissed, you are totally out of luck. If you have accrued the 3 or 10 year bars by waiting on the appeal, then there is nothing that can be done about it. You wouldn't be allowed back in the US until the bar had run out or until you got a waiver of the bar.
If you win the appeal, then your wife's I-539 application to extend H-4 status, which was denied on April 1, 2005 along with your H-1B extension, would be reopened and approved. USCIS would most likely reopen her I-539 application on their own motion and approve it, back-dated to the same approval date as your H-1B. If they did not open it on their own motion, you could file your own motion to reopen, and they would approve it back-dated.
To be on the safe side, you could stay in the US until just before you have accrued 180 days of unlawful presence, and then leave. It is possible (but unlikely) that the appeal will be decided prior to your departure. But if not, then leaving prior to 180 days would ensure that you would not accrue the 3 year bar. If you stay in the US past 180 days, you run the risk that if the appeal is dismissed, you will accrue the bars. Also, you should note that you are technically deportable when you are out of status. It is possible that the Department of Homeland Security could place you in removal proceedings at any time. I don't know if you would be a high enough priority for them to come after you, but it is possible.
After you leave the US, you could do one of two things. First, you could either wait for the appeal to be decided. Currently the Administrative Appeals office is working on I-129H denials that were filed 13 months ago. You would likely be waiting for some time for this to be approved. If it is approved, you would receive the H-1B approval notice, and could apply for H1B and H4 visas at a US Consulate abroad. Alternatively, your employer could file a new H-1B petition on your behalf. Upon its approval, you would have to obtain visas from a U.S. consulate in order to reenter the U.S.
Also, depending on the reason for the denial of your H-1B extension in February, the issue causing the denial may need to be addressed in the new petition filed with USCIS and/or the visa application at the consulate.
Q: Is there any chance to obtain a copy of the US Visa of a person who stays with me? The visa was issued in Warsaw.
A: A visa applicant may request records from his or her own visa file through a US Consulate abroad by filing a FOIA (Freedom of Information Act) request. However, the Privacy Act prevents third parties from obtaining information on another person by using a FOIA request.
The Foreign Affairs Manual states the following about FOIA requests for information from a visa file:
9 FAM 40.4 N4 FOIA and Privacy Act Requests
a. With the exception of requests mentioned in 9 FAM 40.4 N5.5 below, in any case where a request for release of documents or information contained in a visa applicant's file specifically makes reference to the FOIA or Privacy Act, the consular officer shall advise the requester, if they wish to pursue the matter, they must submit the request in writing to:
Margaret P. Grafeld
Office of Information Resource Management
Programs and Services
A/RPS/IPS, SA-2 Rm 515 22nd Street, NW
Department of State
Washington, DC 20522-6001
b. At the same time, the consular officer shall also inform the requester that visa records are confidential under INA 222(f) and are generally not releasable under FOIA or Privacy Act unless the document was submitted by or sent to the requesting party. Therefore, persons requesting visa information under the FOIA or Privacy Act generally will only be able to obtain documents they have already seen. [See 9 FAM 40.4 N5 below for instructions relating to requests for information from the applicant or the applicant's representative.]
c. The Information and Privacy Coordinator serves as a control point for disseminating FOIA requests for adjudication by appropriate offices, i.e., CA/VO/L/A for requests relating to visa files.
d. When the Department receives a FOIA or Privacy Act request relating to visa records, the Department's FOIA/PA office, Office of Information Resources Management Programs and Services (A/RPS/IPS) will task the relevant post(s) (as well as VO, NVC, and KCC, if appropriate) to search their records for responsive documents and to send documents that fit the description to the request, regardless of whether post believes the documents may be protected by INA 222(f) and exempt from release. A/RPS/IPS will then forward the visa records produced by posts to CA/VO/LA, which will review the documents and determine what, if any, documents may be released consistent with INA 222(f) and relevant FOIA and PA exemptions. In general, the Department will only be able to release to the visa applicant or his or her representative those documents that were submitted by or provided by the applicant in the course of processing the visa application.
Q: My 6th year term is expiring in January 2006. I have applied for I-140 and I-485 concurrently in October 2004 and have responded to I-140 RFE regarding ability to pay in May 2005. There has been no change in my I-140 status since then. My question is, I have a good job opportunity and since it is my 6th year on H-1B I am not able to leave my employer. Is there any way I can get a new H-1B done from a new employer, even though it's my last year? Can I continue with my green card if I change employers?
A: The American Competitiveness in the Twenty First Century Act, or AC21 (http://www.usvisahelp.com/
The safest way to port is to wait until after your I-140 is approved. However, the most recent guidance on AC21 states that if you port off an unapproved I-140 petition where the I-485 has been pending 180 days, USCIS will review the I-140 petition to determine if the case is approvable. If approvable, they will approve it and go on to adjudicate your I-485 application.
One of the reasons it is dangerous to change employers before your I-140 is approved is that if an RFE is sent to the original I-140 petitioner, the petitioner may fail to reply to the RFE, which would result in denial of the I-140. In your case, though, it sounds like there has already been an I-140 RFE that has been responded to, so it is unlikely there will be another RFE.
The danger you face now is that if you change employers, and the I-140 petition is denied on the merits, you have no basis for continuing with the I-485 application. However, you face the same problem if you stay with your current employer.
As far as maintaining your H-1B status, if your new employer were to file an H-1B petition on your behalf prior to expiration of your current status, you could begin working for the new employer immediately upon the filing of the petition pursuant to INA 214(n). Then, AC21 allows you to extend your H-1B status in one-year increments past the traditional 6-year maximum, so long as 365 days have elapsed since the filing of either your Labor Certification or I-140 petition. Your I-140 was not filed over 365 days ago, but was your Labor Cert? If so, then when the new employer files the H-1B petition they could simultaneously ask that your stay be extended for 1 year after the current H-1B expiration date.
Once you change employers, if the I-140 is approved it will support approval of your I-485 application. If it is denied, your I-485 application will be immediately denied as well. You will be able to remain in H-1B status for the duration of the I-94 card that you hold at that time. However, you will have no basis for extending your H-1B status after that.
Please note that this is a strategically complicated matter and there may be other factors which, if taken into account, would change this analysis. I would recommend consulting with an immigration attorney before proceeding.
