H1B Stamping issue Please help

[mrnnmr]

Hello All,

I'm a LPR since Oct 2004 and I got married after I got my green card. My wife was lucky to get a visitor visa and ended up converting to H1-B in Oct 2005. She has not left the country ever since and now wants to go to India for a visit. She does not have a H1-B stamp yet on her passport.

My wife got a visitor visa when she was not married to me and used that to enter the US. But when she entered the US she was married to me and we came separately in different lines for immigration where we she was just questioned about duration of stay and things like that. She was given a 6 month duration and she converted to H1-B. She is currently on an exteneded maternity leave.


The problem is that she is not working since November 2007 and does not have recent paystubs.



1) How easy or difficult is to get H1-B stamping of a wife of LPR ?
2) Will old pay stubs ( as old as November 2007 ) and letter of employment work for getting H1-B stamping ?
3) My I-485 was approved in October 04 and I received my card only in Dec 04. So technically when does one become an LPR ? When he get his physical card or when the I-485 is approved ?


Thanks in advance

Jai

[DMX17]

She must get paid all the time. It is likely that the VO would ask for pay stubs. Pay stubs are required to prove that she maintained her H1 status (and she apparantly did not).

What about the non-immigrant intent at the time of entring with a visitor's visa when it is clear that she was married at the time on entering on B2 (and hence the separate immigration line)? I would argue that she had an immigrant intent because her husband was an LPR then. You become LPR when the I-485 is approved. It can be argued that she entered with an immigrant with a visa that requires non-immigrant intent. This is just my opnion.

[txh1b]

All the items that DMX pointed out along with being out of status for more than 180 days will be a huge problem once she applies for a visa or a GC after you become a citizen.

Talk to a lawyer. Her GC could be denied for reasons DMX mentioned. USCIS is good at arguing the case just like how DMX did.

[DMX17]

Talk to a lawyer. Her GC could be denied for reasons DMX mentioned. USCIS is good at arguing the case just like how DMX did.

Does USCIS hire people on H1? Too bad for them, if they don't apply for H1.

[txh1b]

Does USCIS hire people on H1? Too bad for them, if they don't apply for H1.

I ran into an ad for USCIS adjudicator on monster from the california service center couple of months ago. The ad was from a third party and not USCIS directly. I am not sure if this third party does H1bs for USCIS contractors. If they do, it might qualify for a cap-exempt H1b

The requirements were also pretty tough. They need to pass a test on reasoning which was close to data sufficiency questions on GMAT. They also need to apply complex laws and interpret them to the case presented etc etc.

Read more here when you have time.

http://www.uscis.gov/files/nativedocuments/DCAO_prep_739_AAs.pdf

I will try to find that job req if it still exists and post the details :-)

[mrnnmr]

Thanks guys for your replies.

Interestingly I just found an article on rediff

Overstayed your US
visa? Read this

Well coming in a separate line is something I would not mention USCIS. But how can anyone prove that we did come in separate lines ?

Maybe I should wait to apply for my citizenship and I will be eligible only in July 09 .

[DMX17]

Well coming in a separate line is something I would not mention USCIS. But how can anyone prove that we did come in separate lines ?
.

Nor would they care about this.

I assume you will apply for an adjustment of status (I-485) at some point after you become a USC. This is where her closet should be (and is) inspected. And the violation of H1 status by not working/getting paid will likely be a serious issue since your wife has been out of status more than 180 days now. Another red flag might be entering on B2 while she was married to a LPR (same line - different line is of no importance here).

[mrnnmr]

I assume you will apply for an adjustment of status (I-485) at some point after you become a USC. This is where her closet should be (and is) inspected. And the violation of H1 status by not working/getting paid will likely be a serious issue since your wife has been out of status more than 180 days now. Another red flag might be entering on B2 while she was married to a LPR (same line - different line is of no importance here).

Yes I will need to apply for I-485 at some point for her. But then a lawyer once told me that once I become a citizen there should not be any problem in her getting an EAD. Infact this is one of the reasons why they scrutinize at the consulates abroad before issuing a B2. Seems like if I she does not leave the country before I become a citizen is the best solution but thats difficult if not impossible.

Jai

[txh1b]

The H1b employer is required to pay one at all times. Search for Neuman on the forum and there is a recent memo. That will put her back into status. If she leaves US, then she could earn a 3 year ban or a 10 year ban after the illegal presence exceeds 365 days.

She is out of status now but not illegal if her H1b I-94 is valid. So, the 180 day ban may not apply but getting a visa will be tough. You need to talk to another immigration lawyer.

Anyone that has a pending 485 that was filed will get an EAD. that is not the issue. Getting the 485 approved is the issue. The lawyer is right after all. No issues getting EAD but there will be issues getting a GC.

[txh1b]

Actually, it is Neufield memo.