Murthy Law Firm Overcomes Client’s Status Gap to Get I-485 Approved12 Nov 2015
The Murthy Law Firm successfully represented an adjustment-of-status applicant facing challenges due to a problematic status history. We became involved in this case after the U.S. Citizenship and Immigration Services (USCIS) issued a request for evidence (RFE) questioning the adjustment applicant’s eligibility based on her supposed failure to maintain status and her potential inadmissibility bar due to travel abroad after accumulating more than one year of unlawful presence (ULP). We are happy to report that our legal arguments prevailed, making it possible for our client to become a lawful permanent resident (“green card” holder).
I-94 Card Issued with Improper Expiration Date
The problem in this case started when the adjustment applicant entered the United States pursuant to H-4 status. At the port of entry (POE), she presented her valid H-4 visa “stamp” and her spouse’s latest H1B approval notice. Unfortunately, the officer at the POE mistakenly limited her I-94 expiration date based on the date her H-4 visa was to scheduled expire, rather than correctly granting her a stay that matched the expiration date of her husband’s H1B approval notice (form I-797).
Several months after her H-4 admission, the applicant utilized a visa renewal program that is no longer available. Under this now-defunct program, she was able to obtain a new H-4 visa issued from within the United States by the U.S. Department of State (DOS). This visa stamp was issued based solely on proof of her husband’s latest I-797 H1B extension approval, and did not require her to provide any evidence of her lawful H-4 status.
Incorrect Presumption that the H-4 Visa Provides Status
Prior to becoming our client, this individual presumed that she was in valid H-4 status based upon the renewed H-4 visa stamp in her passport. When she eventually traveled outside the United States, she was able to smoothly regain admission in H-4 status by presenting her H-4 visa stamp to a U.S. Customs and Border Protection (CBP) officer at the POE. Following her travel abroad, she timely filed an application to extend her H-4 status and later went on to file an adjustment-of-status application (form I-485).
Background on Unlawful Presence (ULP) Bars
The RFE raised questions as to whether this individual potentially should be subject to a 10-year bar, based on her leaving the United States after accumulating an excessive amount of ULP. Under immigration law, a person may be prohibited from being admitted to the U.S. for a 3- or 10-year timeframe, depending on how many days of ULP s/he accumulated prior to departing the country. A foreign national’s I-485 application cannot be approved while such a bar is in effect.
Typically, an individual begins to accrue ULP starting the days after her/his I-94 expires, unless an application or petition to change, extend, or adjust status is filed prior to that date. The foreign national, generally, will then continue to accrue unlawful presence until departing the United States. For more information on unlawful presence, see the MurthyDotCom NewsBrief, Differences Between: Lawful Status, Period of Authorized Stay, and Unlawful Presence (03.Jun.2013).
If a person accumulates more than 180 days of ULP, a 3-year inadmissibility bar is triggered upon departing the United States. A 10-year bar is triggered if the person leaves the U.S. after accumulating 1 year or more of ULP.
ULP Arguments: Government Error and Status Confirmations
The adjustment applicant finally engaged the Murthy Law Firm upon receiving an RFE that claimed she was ineligible for a green card based on her ULP and that she was inadmissible because of the 10-year bar. The legal team at the Murthy Law Firm argued that no ULP actually occurred, as the wrong I-94 expiration date was given to her by the CBP. We evidenced that she actually was entitled to the full duration of her spouse’s I-797 H1B approval notice at the time of her admission. We further noted that the DOS had issued her the H-4 visa and CBP readmitted her to the United States – both of which are immigration benefits that should not have been granted to an individual with an extended period of unlawful presence.
Murthy Argues Client Eligibility, Even if 10-Year Bar was Triggered
In addition to the above, the Murthy Law Firm argued that the applicant was eligible to adjust status even if she had been unlawfully present and triggered a 10-year inadmissibility bar. In support of this, we pointed out that more than ten years had passed since she departed the United States. Thus, even if there was a potential 10-year bar that applied, it had been triggered and satisfied during her time spent in the U.S. We provided the USCIS with legal support to demonstrate that, even if she had been subject to the 10-year bar, she was still eligible for approval of her I-485. As fierce advocates for our clients, we always try to present immigration officials with multiple avenues that could allow the government to approve a case.
This I-485 approval was unique and complicated, but it illustrates the nuances that must be understood and explored when there are status irregularities in an applicant’s history. The solutions to such problems are often easiest when the discrepancies are discovered early. So, such matters should never be ignored under the assumption that a way to fix the problem will appear later. But, even years after an event occurs, it still may be possible to find a creative legal solution. The Murthy Law Firm is delighted that we were able to help this client in making her American dream a reality.
The Murthy Law Firm never reveals details of any case handled by our firm, nor the identity of any client, without first obtaining his/her express consent. We appreciate the generosity of our client in allowing us to use this case as an example to our readers. Please note that all cases are different. Even with cases that appear to be similar, past success does not guarantee a favorable result.
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