H-4 Motion to Reopen / Reconsider Successful with Detailed Records
Posted Jun 13, 2008
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The Murthy Law Firm recently obtained approval of an H-4 extension of status (EOS) application after the USCIS issued a denial to the prior attorney. The application was denied due to the alleged abandonment by the applicant and because the prior attorney on record did not respond to the USCIS with the requested evidence. Before our firm became involved in the case, the USCIS issued a Request for Evidence (RFE) that apparently was received neither by the applicant nor the prior attorney. As a result, they could not respond to the RFE and the H-4 EOS application was denied. Fortunately, the applicant had maintained copies of her application and all correspondence from the USCIS in which they acknowledged their error in sending the RFE to an incorrect address. Using detailed documentary evidence, we at the Murthy Law Firm assisted the applicant in obtaining approval of the H-4 EOS application after the USCIS acknowledged their error. This summary illustrates the importance of retaining copies of all communication with the USCIS, which often turns out to be a simple strategy to overcome certain types of denials.
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Maintain all Communication with USCIS
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This is similar to another case about which we reported in our January 28, 2008 article, I-485 MTR Successful with Detailed Records! We thank these clients of our firm for their permission to report this case for the benefit our MurthyDotCom and MurthyBulletin readers, like you.
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Requirements for an H-4 Extension
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To be eligible for an H-4 EOS, an applicant must file his/her application before the expiration date noted on the I-94 card. Of course, all the other legal and substantive requirements for H-4 status, such as evidence of the familial relationship to the H1B principal applicant and the H-4 maintaining valid nonimmigrant status, must also be met. If there are issues relating to eligibility for H-4 status, the USCIS generally issues an RFE to afford the applicant an opportunity to provide clarification.
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Overview of the Facts Resulting in the USCIS's Earlier Denial
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In this case, the husband’s prospective employer filed an H1B change of employer petition (with EOS request) along with his wife’s H-4 EOS application. Both sets of documents were mailed by courier in separate packages to the Vermont Service Center (VSC). Subsequently, the H1B petition for the husband was transferred to the California Service Center (CSC) and eventually was approved.
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After several months of waiting for the H-4 approval notice, the husband contacted the USCIS to inquire about his wife’s case status. As a result, the couple learned that the VSC had issued an RFE on her application. They had not received the RFE, due to an error made by the VSC in the mailing address. Because of the couple's persistence, the VSC acknowledged the error. However, by the time the RFE was received, the due date had long passed and, despite the VSC’s confirmation of the typographical error, the wife’s H-4 EOS application was denied due to alleged abandonment, namely the failure to respond to the RFE.
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H-4 Successful
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The Murthy Law Firm was contacted after it became apparent that the spouse could become subject to the 3-year or 10-year bar to reentry. We are happy to report that our attorneys were able to present the case successfully in a motion to reopen / reconsider the USCIS denial by submitting strong supporting evidence, including copies of the courier delivery receipts of both packages to the VSC on the same day, receipt notices for the H1B petition and H-4 application for extension of status, and all correspondence from the VSC explicitly acknowledging their typographical error and failure to timely deliver the RFE as required, legally mandating the USCIS to reverse the earlier decision and approve the H-4 EOS.
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Conclusion : Maintain all Evidence / Documents
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We at the Murthy Law Firm are always pleased to obtain approvals. It is especially satisfying when the consequences of a denial are so dire and can mean possible long-term separation of family members. It is wise to retain copies of all documents, such as a delivery confirmation eMail, a receipt notice, a copy of an envelope in which the filing was made, and related items, in case a problem arises on a case. It also generally is advisable to file related petitions or applications together to avoid their separation in the mailroom. As always, we encourage all foreign nationals to keep copies of filings and immigration documents in a safe place so that they are easily accessible in case they are needed to overcome a problem, such as an error on the part of the USCIS. The evidence and documentation that is carefully kept will help one's attorney to effectively file a case, respond to an RFE, or file an MTR or appeal in a timely and efficient manner; hopefully resulting in an approval.