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Failure to file a change of status for your spouse is not necessarily fatal to your case

We received a frantic call from Dr. Wang. It seems that his wife has been out of status now for over a year (close to a year and a half). When Dr. Wang joined his current employer, they filed for his change of status from F-1 to H-1B, but failed to file a change of status for his wife, even though they knew he was married and that she was in the US with him. Once Dr. Wang’s H-1B status was approved his wife no longer qualified as an F-2 and technically fell out of status. This error was only discovered when Dr. Wang accepted a position with a new employer and they were preparing his new H-1B petition.

Because she had been out of status for so long it became critical to find a way to get Mrs. Wang back into status in the US. If she were to leave the US to get a new visa it was possible that a consular officer could have determined that she was out of status for over a year and thereby subject to the 10 year bar.

Some quick research confirmed that we could still seek a change of status for Mrs. Wang under 8 C.F.R. § 248.2 if we could show that the error in not filing was “through no fault of her own.” We gathered as much information as possible to show that the attorneys that filed Dr. Wang’s change of status to H-1B was aware that he was married and that his wife was in the US with him. We were able to show that Dr. Wang had provided the attorney with his wife’s information but that he failed to prepare the change of status for her. We also got a statement from Dr. Wang that the attorney did not advise him to file a change of status for his wife, and that the Wang’s relied on the attorney‘s expertise and assumed that everything that was required had been completed and filed.

To our great delight Mrs. Wang’s change of status application was approved after about 6 months (because of the length of time that Mrs. Wang had been out of status the USCIS asked for additional evidence about what Mrs. Wang had been doing in the US since her husband had changed status, which was quickly provided to the service center) and her status was extended to match that of Dr. Wang.

The regulations require that a change of status application must be received by the service center with jurisdiction over the place of residence of the applicant before the applicant’s current status expires. If the application is not timely filed, USCIS has the discretion to excuse the late filing if the applicant can show that:

a.
  the late filing was due to extraordinary circumstance beyond the control of the applicant, and that the delay was commensurate with the circumstances;
     
b.   the applicant has not otherwise violated their status (e.g., has not engaged in unauthorized employment);
     
c.   the applicant remains a bona fide nonimmigrant; and
     
d.   the applicant is not in removal proceedings.

The outcome is clearly dependent on handling the facts of the case, and as demonstrated here, can be successful even when the applicant has been out of status for a lengthy period of time.

Our attorneys have the experience to review and analyze difficult cases and formulate strategies for success. We would be happy to review your case and discuss your options.