IndiaPost.com - Resuscitating non-immigrant visa status in the US

(Continued from last week's article)

This individual may still attempt to file the H-4 extension within the US and to invoke the favorable discretion of the United States Citizenship and Immigration Service (USCIS) under 8 CFR Section 214.1(c)(4). There are four prongs to satisfy under this rule. First and most important, the applicant must establish that the delay was due to extraordinary circumstances beyond the control of the applicant.

The USCIS might disagree that the failure to file the extension timely was due to extraordinary circumstances beyond the control of the H-4 spouse. It is different from the situation where someone is hospitalized under emergency circumstances. Here, the H-1B employee may have inadvertently not notified the employer about the existence of his spouse, and could have also assumed that the filing of the H-1B extension would automatically extend the H-4 spouse's status too.

Or the employer may have inadvertently failed to inquire, at the time of filing the extension, whether the H-1B employee had a dependant spouse. Essentially, this is a classic case of the H-4 spouse falling through the cracks! Thus, the USCIS might argue that the lapse was due to the negligence of the H-4 applicant or the spouse's employer, or both, and was not due to a dire extraordinary circumstance beyond the control of the spouse.

On the other hand, the attorney representing the H-4 spouse can forcefully argue that the employer's negligence (or that of the employer's attorney) should not be imputed to the spouse. Even if the H-1B employee was negligent, one can argue that it was still not the spouse's fault, and this ground constitutes an extraordinary circumstance beyond her control.

This argument may be further bolstered if the employer and even the employer's attorney submit an affidavit explaining their inadvertent failure to file the spouse's H-4 status. Assuming that one can prevail under the first prong, it is important to also establish that the late filer satisfies the remaining three prongs. The second and the third prongs are somewhat intertwined.

Section 214.1(c)(4) further requires a showing that the applicant has not otherwise violated his or her nonimmigrant status and that he or she remains a bona fide nonimmigrant. Thus, if the H-4 applicant has violated her status in other ways besides the untimely filing, she may not be able to invoke the favorable discretion of the USCIS.

A good example might be if she has also worked in an unauthorized capacity. The third prong, which requires that he or she remains a bona fide nonimmigrant, generally requires demonstration that the individual continues to have a residence in the foreign country. It can be argued that this does not apply to an H visa holder, whether in H-1B or H-4 status, as Section 214(b) of the Act provides an exception of the foreign country residence requirement to such individuals.

The fourth prong will be satisfied if the H-4 applicant is not the subject of deportation proceedings. In the event that the H-4 applicant is successful in invoking the favorable discretion of the USCIS under Section 214.1(c)(4), she will once again be in H-4 status. Moreover, any departure after the reinstatement of H-4 status would not trigger the three and ten year bars to reentry into the US.

Erroneous Date of Status Expiration on Form I-94 Another common scenario occurs when an individual is issued a Form I-94 at the port of entry with a date of expiration that does not match the date of expiration of the actual visa. Take for example the beneficiary of an H-1B approval valid till March 30, 2007. However, when he last entered the US on February 26, 2006, the officer at the airport noted on the Form I-94 that the period of admission was valid only till March 30, 2006. He did not realize this discrepancy upon and admission and discovered it only a few days prior to March 30, 2007.

This individual too can file the H-1B extension request, through the employer's Form I-129, invoking the provisions of Section 214.1(c)(4). Unlike the example involving the H-4 spouse, this individual has not only been out of status but has also worked without status. Here, it can be argued that the individual being out of status is a mere technicality and was clearly the error of the official who admitted the individual at the port of entry.

Moreover, it could also be argued that it is unclear whether the I-94 attached to the original Notice of Approval (Form I-797) indicating a validity date till March 30, 2007 controls or the last erroneous I-94 document issued by the inspecting official at the airport with a validity date of March 30, 2006. Another way to resolve this problem is for the individual to schedule an appointment with the nearest Customs and Border Patrol (CBP) office to rectify the erroneous date on the I-94.

This can either be done at the airport itself or by scheduling an Infopass appointment (www.uscis.gov) at the Department of Homeland Security office (Deferred Inspection Unit) nearest to where the individual resides. This approach is more effective if the individual discovers the erroneous date on the I-94 within a short time of the admission. Thus, it is always important to check the date annotated on the I-94 each time one enters the US on a nonimmigrant visa.

Conclusion In conclusion, being able to resuscitate one's nonimmigrant status in the US can alleviate some of the harsh effects of the immigration laws, such as being unable to reenter the US for three or ten years. Although an individual subject to the bars can still obtain a nonimmigrant visa waiver pursuant to Section 212(d)(3) of the Act, it is difficult and uncertain to obtain, and these grounds of inadmissibility can still raise their ugly heads when the individual applies for permanent residence.

Thus, if the individual has not fulfilled the conditions of the bars at the time of permanent residence, he or she will have to again apply for a waiver under Section 212(a)(9)(B)(v) of the Act. Strategies to apply for waivers of the bars are beyond the scope of this article.