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