Murthy Success Story: Approval After Ten-Year Gap in Status

In most situations, individuals seeking adjustment of status to permanent residence must maintain a valid nonimmigrant status prior to filing the I-485. This success story from the Murthy Law Firm is a rather extreme example of the use of an exception to this general rule. The exception can apply in cases where the failure to maintain status was through no fault of the applicant or for technical reasons. This is the story of our efforts to obtain permanent residence (commonly referred to as the “green card”) for an individual who had fallen out of status for nearly a decade, through no fault of her own.

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Applicant Initially Entered U.S. in V-2 Status

We begin in late 2001, when the foreign national in this story entered the United States in a category known as V-2, which was available to a limited group of people. Individuals in V-2 status could eventually adjust status to permanent residence, once their family-based priority dates became current. Eligibility for children ended at age 21, at which time they were no longer eligible for either the V-2 classification or the related adjustment of status.

First Mistake: Port of Entry Gives I-94 Date Beyond 21st Birthday

At the U.S. port of entry in 2001, this individual was mistakenly issued the I-94 with an expiration date beyond her 21st birthday. The error led her to believe incorrectly that her status would be valid even after she turned 21 years of age.

Second Mistake: Former Attorney Misses I-94 Mistake

After her 21st birthday, the individual got married to a man who held H1B status. She immediately filed an application to change her status from V-2 to H-4 through a former attorney. The application was denied, because Legacy INS determined correctly that the applicant was not eligible to change status, as she had “aged out” and was no longer maintaining a valid status when she requested the H-4.

Desperate Search for Solutions and More Mistakes

Following the denial of her request to change status, the foreign national desperately sought solutions that would allow her to resume a valid nonimmigrant status in the United States. She unfortunately was not advised regarding the need to depart the U.S. following the H-4 denial. At that time, she could have obtained H-4 status by departing the United States and obtaining an H-4 visa, allowing her to return in that status. This option was not identified until after more than one full year of unlawful presence in the United States had been accrued. She therefore would have triggered the ten-year bar to admission, had she departed.

Years elapsed with no resolution to her immigration situation. Hoping to solve their daughter’s status problems, her parents filed an I-130 family petition for her, once they became U.S. citizens. Other filings also were made, all of which were fruitless.

Change in Law Overlooked by Earlier Attorneys

In 2005, the law that terminated V-2 status upon the nonimmigrant’s 21st birthday was retroactively overturned. This change contained procedures allowing individuals to regain V-2 status, despite lapses in status under the prior law. Unfortunately, this important change in the law was overlooked. She remained in the United States, still hoping to be able to get a green card through other changes in the law or once her husband became a U.S. citizen and could sponsor her as his spouse.

Applicant Seeks Advice from Murthy Law Firm

When her husband became a lawful permanent resident (LPR), the couple turned to the Murthy Law Firm for a review of the case and an opinion as to whether she had any hope of gaining permanent resident status. After a thorough review of the immigration history of this case, our attorneys decided, essentially, to try going backwards and fix the past, so that our client could be eligible for immigration benefits.

Murthy Files for Reinstatement of Earlier V-2 Status

We at the Murthy Law Firm decided to start by using the 2005 changes in the V-2 laws. Based upon those changes, we filed a late application requesting that she be reinstated retroactively to V-2 status, effective following her 21st birthday. We also requested that the U.S. Citizenship and Immigration Services (USCIS) reopen the denial of her initial change of status application from V-2 to H-4, since that would have been approved if her V-2 had not been cut off when she reached the age of 21.

Murthy Files I-485 and USCIS Issues Approval

We at the Murthy Law Firm also filed an application for adjustment of status (I-485) on behalf of our client, as a dependent in her husband’s green card case. While it generally is necessary to be in a valid nonimmigrant status at the time of filing an I-485, we used an exception to that general rule. The exception allows for adjustment of status in limited circumstances, when the failure to maintain status was through no fault of the applicant or for technical reasons. Less than five months later, our client received the approval notice for her green card.

Murthy Establishes Applicant’s Efforts to Comply with the Law

In the ultimate analysis, the legal team at the Murthy Law Firm was able to establish various factors to request the USCIS to approve our client’s green card. In addition to a positive change in the law regarding V-2 status, the key favorable factor in our client’s case was that she demonstrated consistent attempts to comply with immigration law and maintain her status in the United States. Although she was out of status for many years, this was not because she ignored her responsibility to comply with immigration laws. Her efforts to address the situation involved multiple lawyers and “advisors” who held themselves out as qualified in the area of immigration law. When asking the USCIS to exercise discretion, this type of genuine effort often is viewed positively.

Conclusion

There may be overlooked or otherwise creative solutions to many seemingly hopeless immigration problems. It is important to remember that such requests for relief are highly discretionary and there is no guarantee of success. The “no fault of your own or for technical reasons” exception is narrowly defined in the regulations, and requires that one otherwise be eligible for permanent residence. As every situation is different, those affected should consult with a knowledgeable, experienced immigration attorney who can advise on appropriate courses of action.

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