RFE - Need Help

[balukr]

I got an RFE for my wife stating she needs to provide any legal document like 1-94 or any Visa between Oct 2004 and Aug 2005 , before proceed I need to give a little history about my wife's case during that period mentioned in RFE by USCIS when my employer renewed my H1 in October 2004 some how the attorneys filed my H1 forgot to file H4 for my wife. We were not aware of this till Aug 2005 so immediately we contacted HR and our attorneys, they suggested we can file an amended H1 for me and file H4 along with the plead letter . Since we filed with premium processing both H1 and H4 got approved within a week , I did asked that attorneys at that time will this affect our GC and they said it shouldn't be.

I agree she was out of status in this country for that period I just want to know

1. Since we don't have any documents what USCIS is looking for except this plead letter when we filed for H4, can we respond to this RFE at all ?

2. Are there any options to proceed GC processing for my wife ? I just want to know black or white, because lately I'm seeing USCIS is looking for reasons to reject GC and unfortunately we gave them an oppurtunity.

3. In case if there are no options and if USCIS revoke her EAD and AP, she still has H4 till May 2010 can she stay legally till then.

We have two kids both are US citizens and our first one is going to 2nd grade in school now , if some thing doesn't work out, we need to leave in middle of the school year and it will put lot of stress on her . Not only school leaving the job and country moving back to India with family for ever after living here for more than 9 years is pretty painful process .

Thanks,

[gapala]

Have you travelled out of US and entered after August 2005? If yes, then the IO should look at the period only from your last valid entry into united states...

Man! what a screw up by employer?
Thats 11 months out of status due to expired visa (H4). I assume that she did not have valid I-94 during that period? Will this be considered as unauthorized stay in US?.

When you got the renewed H4, You must have received her I-94 attached right? What are the dates (from and valid till) on that I-94?

hopefully you will receive more information from other members.

[balukr]

Actually we did get H4 approval after Aug 2005 again for my wife, we do have EAD and AP both for me and my wife and we did travel to India once after that .Part of it is my fault too I didn't know much about h4 at that time so I thought everything is good. Not sure how this will turn out now. I-94 date was only from 2005 not from the date we missed in 2004.

[rockstart]

Did your wife get the new H4 stamped in her passport? If yes then she should be OK.

[balukr]

No by the time we traveled to India we had AP , so we didn't bother to stamp our H4 at that time and start using the AP for travel.

[rockstart]

Originally Posted by balukr

No by the time we traveled to India we had AP , so we didn't bother to stamp our H4 at that time and start using the AP for travel.

My friend unfortunately that robs us of one opportunity to make it an easy 245(k) case and get the status violation waived. If she has re-entered on a valid visa the previous violation would have been reset and she would have started on fresh slate.

Now the only option would be for lawyer to file a Nunc- Pro - Tunc or what ever it is called I am not an expert in that piece but there are others on the forum that can help you. good luck to you both and god bless.

[Thiru]

I got my AP approval e-mail on 4 th Sep 2009.Not yet received AP approved Document in mail.The Processing Center is Texas.Anyody in the same situation.

[balukr]

Rockstart, Thanks for your response..When we got her H4 again to regain her status in 2005 we did through "NUNC PRO TUNC" process and INS did approved her H4..my problem is RFE is to get evidence of visa status or I-94 for that period we missed from Oct 04 to Aug 05. My lawyer is working on this to respond.For now I guess I have to keep my fingers crossed and pray....

[sohilbt]

balukr,

I am not a lawyer...but my understanding is if you have gone through "NUNC PRO TUNC" process you should be fine. Just submit the letter explain that process was followed in 2005, along with 2005 approval notice and copies of documents you submitted at that time.

Ideally, your I-94 on H-4 approval notice should have date of Oct 2004 indicating that H-4 status was re-instated from Oct 2004.

[sohilbt]

Hope this helps
MurthyDotCom : Nunc Pro Tunc H1B and H-4 Cases Approved