Legal Question in Immigration Law in California


My wife is an H1-visa holder. She is a teacher. She filed for an extension 2 months ago and USCIS sent her and her agency(people that filed her application) an RFE asking for her Tax paperwork, etc. Her visa got denied last week because her agency did not submit all of the documents(her Tax paperwork) that USCIS asked for. Now she wants a new attorney to handle her case and she asked someone what to do and she was adviced to either do a late filing or refiling. The problem with the late filing according to the person she asked is that when she knew about the denial, she did not stop working which is a violation because she was already out of status so if she does late filing, USCIS might ask for proof that she was not working during that period of time. The other option is she can refile but as much as possible we don't want to go back home(Manila) for stamping so there wouldn't be too much expenses.

Please advice us what the best option is in this case. Any other advice would be appreciated.

Hope to hear from someone asap.

Thank you! :)

Asked on 8/11/09, 8:37 pm

2 Answers from Attorneys

Ellaine Loreto Law Offices of Ellaine Loreto

I am sorry to hear you and your wife are going through this situation.

If you are a U.S. Citizen, you may file an immigrant petition for her, so that she can get her green card, without having to leave the U.S.

If there you cannot petition her, then unfortunately, the 2 options you mentioned are good alternatives. She may be able to change her status to another status, such as a student visa or investment visa, but she takes a risk of it being denied, and her continuing to accrue unlawful presence. There may be alternatives for you, but I would have know the date of denial and review the details of the denial.

To discuss your options further, you can contact me at 714 288 0574 or email me at [email protected] Our office offers a FREE initial consultation and payment plans.

Note: The above response is provided for information purposes only and should not be construed as legal advice, nor to create an attorney-client relationship, which can only be established through payment of consideration.

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Answered on 8/11/09, 8:51 pm

Since the H-1 was denied, the best options are to re-file or to do a late filing of the RFE (or both!). Unless the USCIS approves the case, the re-filing of the H-1B petition would mean that you would both have to go back to your home country to receive the H-1B visa (assuming it is approved), since this was an extension of her initial H-1B and I am assuming that her I-94 has expired. If the I-94 has not expired, then there is time to file another request for the extension prior to its expiration and you wouldn't have to leave the U.S. That neither the attorney nor the employer (unbeknownst to you) prepared the response to the request on time is information that you should use in preparing your decision to re-file or to file a late response. Assuming that you are in H-4 status, you also are out of status, and hopefully, the petition for the H-1B also included a petition to extend your H-4 status. If not, then hopefully, you are in another legal status (e.g., perhaps you have your own H-1B, or have some other non-immigrant status).

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Answered on 8/12/09, 5:58 am

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