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How Strategy and Preparation can Prevent Denial of H-4 (Dependant) Visa Resulting from Out-of-Status F-1 (Student) Visa

The scene - You just got married and everything is looking good. Your spouse has a great job offer in the US and is moving there to start work in a couple of weeks. She got her H-1B visa at the consulate several weeks ago, but yours was denied. You are now faced at being separated from your new wife for several months (or years). Do you reapply? or do you just accept the decision of the consular officer and wait it out? A client, Mr. N, came to VisaPro with this scenario recently.

The background - Mr. N had been granted a visa for the US in the past. Several years ago he had come to the US to pursue his Master's degree on an F-1 visa. As a student you have to continue to attend classes full-time to maintain your status. Unfortunately Mr. N had some medical issues, he suffered from clinical depression, which prevented him from attending school. He did not finish his classes one semester, was denied readmission, and his student status was terminated. He worked with the school to get treatment for his depression and was given a second chance. He applied for reinstatement of his student status and was approved, allowing him to continue his studies. At this point we wish we could say that everything worked out and he finished his degree program and returned to India. But the depression continued to affect his school work. He transferred to another school and started over. Unfortunately he was no more successful at the new school and soon dropped out. He again found himself out of status. Since he was no longer in school he no longer had access to the treatment that he had been receiving for the depression. It took him several years before he was able to return to India. Once back in India he was able to get treatment and has now overcome the depression. However because he had failed to maintain his student status the consular officer denied him the H-4 visa, and as a consequence, the ability to live with his wife in the US.

The solution -- When he first came to us Mr. N had already been denied an H-4 visa so we were facing an uphill battle. We sat down with Mr. N and got a complete history. To his credit Mr. N had been forth coming and truthful with the consular officer at his first interview - he did not try to hide any of his background.

Our analysis showed that even though Mr. N had been out of status in the US for over 3 years he was not subject to the10 year ban for being an overstay. Because he had entered the US as a student he was granted duration of status, meaning that he did not have a set date that he had to leave the US. Because he did not have a set date to leave the US he never "overstayed his authorized stay in the US," and therefore never triggered the bar. With this in hand we prepared an extensive letter for Mr. N that outlined his background and the law that applied to his situation. We also obtained extensive documentation from his doctors showing that his depression was no longer the problem that it had been when he was in the US as a student. The final step in the process was to prepare Mr. N for his second visa interview. We went through the process with him several times to prepare him for the type of questions that he was likely to receive and how to phrase his answers.

The result - Mr. N attended his second interview, but this time he was much better prepared. He was able to answer all the consular officer's questions and presented himself very well. Our letter showed that while he had been out of status he never had an overstay, therefore he did not trigger the 3/10 year bans. We also showed that as an H-4 he was not subject to the "intending immigrant" provisions in Section 214(b), the section used most often by consular officers to deny visa applications. All of the hard work and preparation paid off, because at the end of the interview the consular officer granted the H-4 visa. Mr. N is now residing in the US with his wife, beginning a new life together.

Our lawyers 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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