AINP with Co-applicant out of status

[karansharma]

Hello Gurus

I have been reading this forum and based on the information I am about to submit AINP application for myself (primary applicant) and my wife (co-applicant). My H1 is valid till Oct 2009 and we have applied for her H1 extension which got denied yesterday. I was planning to send her Passport copy (including  H1 visa stamped and I-94) but as both are not valid anymore and she is out of status, so she will be leaving for India in next one week.

As I am so close of submitting the application I am not sure what are my options now. Can I still send the documentation indicating her job title, company name and passport copies (with expired/denied visa)? Also, as she is still in US so I can not mention her traveling dates to India and similarly can not provide her H4 visa details.

Can somebody help me out with this critical situation.

Thank you

Karan

[email2kale]

Please have a look at this url too http://www.americanlaw.com/albertapnph-1b.html

[email2kale]

Since your visa is valid till Oct 2009... apply as soon as posible.
You need to be on H1B till the end of AINP process which takes about 5 months with current trend.

[karansharma]

email2kale

Thanks for your reply. I am confident that my company will extend my H1 visa so should I include a letter form them indicating continuous employment or should I just send the application and can send the required documentation if they ask later.

Also, the H1 denial notice which my wife received indicates that she has to leave the country in 30 days and she will be leaving before that to get her H4 stamped form India. Although her I-94 expired in February but her H1 rejection came yesterday so will she be considered illegal or overstayed by Canadian government?

Please please help me

[Manny]

As far as your H1B permit is valid, that should be fine.  I dont think you need to send any other letter indicating continuous expected employment.
Best of luck!

email2kale

Thanks for your reply. I am confident that my company will extend my H1 visa so should I include a letter form them indicating continuous employment or should I just send the application and can send the required documentation if they ask later.

Also, the H1 denial notice which my wife received indicates that she has to leave the country in 30 days and she will be leaving before that to get her H4 stamped form India. Although her I-94 expired in February but her H1 rejection came yesterday so will she be considered illegal or overstayed by Canadian government?

Please please help me

[ingegarcia]

You might want to ask your spouse to apply for a Change of Status from H1 to H4 at USCIS... or contact a lawyer for this change... and I believe once it is approved your spouse doesn't have to go out of the country. USCIS will mail the notice approval along with a new I94.

I hope this helps.

email2kale

Thanks for your reply. I am confident that my company will extend my H1 visa so should I include a letter form them indicating continuous employment or should I just send the application and can send the required documentation if they ask later.

Also, the H1 denial notice which my wife received indicates that she has to leave the country in 30 days and she will be leaving before that to get her H4 stamped form India. Although her I-94 expired in February but her H1 rejection came yesterday so will she be considered illegal or overstayed by Canadian government?

Please please help me

[nomad_musafir]

ingegarcia,
i was going to suggest the same.
as far as i know, h1 and h4 times are not combined anymore. so, even if she has used all 6 years of her h1, she can still go on h4 status.

[karansharma]

Thank you all for your answers.

I am talking to a lawyer for her status in US but it looks like as her I-94 is expired and she has to go back to India.  However, my concern is regarding Canada? Will I disqualify for AINP too?

[nick_s]

Please have a look at this url too http://www.americanlaw.com/albertapnph-1b.html

email2kale or anyone,
On the above link there's a following statement:
"It should be mentioned that IRPR 11(1)(a) also permits applicants who have fallen out of status in the United States, after satisfying the one year requirement, to apply at the Canadian consulate in the United States. However, subject to limited exceptions, an applicant who has overstayed his or her nonimmigrant status will be:
- Subject to INA §222(g);
- At risk of incurring an unlawful presence bar under INA §212(a)(9)(B)(i); and
- At risk of being placed into removal proceedings prior to the completion of his or her Canadian permanent residence case."

On one hand this means that although we are out of status in the US but, as long as we meet the one year requirement, we can apply at the Canadian consulate in the US. On the other hand, if we choose to do that, we are at risk of being placed into removal proceedings. Does this mean if an out of status apply at the Canadian consulate, they (the canadian consulate) will contact USCIS or USICE to placed that person into removal proceedings?

[email2kale]

Please have a look at this url too http://www.americanlaw.com/albertapnph-1b.html

email2kale or anyone,
On the above link there's a following statement:
"It should be mentioned that IRPR 11(1)(a) also permits applicants who have fallen out of status in the United States, after satisfying the one year requirement, to apply at the Canadian consulate in the United States. However, subject to limited exceptions, an applicant who has overstayed his or her nonimmigrant status will be:
- Subject to INA §222(g);
- At risk of incurring an unlawful presence bar under INA §212(a)(9)(B)(i); and
- At risk of being placed into removal proceedings prior to the completion of his or her Canadian permanent residence case."

On one hand this means that although we are out of status in the US but, as long as we meet the one year requirement, we can apply at the Canadian consulate in the US. On the other hand, if we choose to do that, we are at risk of being placed into removal proceedings. Does this mean if an out of status apply at the Canadian consulate, they (the canadian consulate) will contact USCIS or USICE to placed that person into removal proceedings?

This is something which made me to note the point... and in the same link they mention that

"Once the applicant has received a provincial nomination certificate, he or she may return home and apply for permanent residence in his or her home country. However, it should also be possible for the applicant to complete his or her permanent residence case at a Canadian consulate in the United States."

[nick_s]

Please have a look at this url too http://www.americanlaw.com/albertapnph-1b.html

email2kale or anyone,
On the above link there's a following statement:
"It should be mentioned that IRPR 11(1)(a) also permits applicants who have fallen out of status in the United States, after satisfying the one year requirement, to apply at the Canadian consulate in the United States. However, subject to limited exceptions, an applicant who has overstayed his or her nonimmigrant status will be:
- Subject to INA §222(g);
- At risk of incurring an unlawful presence bar under INA §212(a)(9)(B)(i); and
- At risk of being placed into removal proceedings prior to the completion of his or her Canadian permanent residence case."

On one hand this means that although we are out of status in the US but, as long as we meet the one year requirement, we can apply at the Canadian consulate in the US. On the other hand, if we choose to do that, we are at risk of being placed into removal proceedings. Does this mean if an out of status apply at the Canadian consulate, they (the canadian consulate) will contact USCIS or USICE to placed that person into removal proceedings?

This is something which made me to note the point... and in the same link they mention that

"Once the applicant has received a provincial nomination certificate, he or she may return home and apply for permanent residence in his or her home country. However, it should also be possible for the applicant to complete his or her permanent residence case at a Canadian consulate in the United States."

well, this statement is not a surprise as lots of people in this forum also aware that we can continue the PR process outside the US once we received the PNP certificate. what's funny is when they permit an out of status to process PR at Canadian consulate in the US but in the same time will placed that person into removal proceedings. a useless permission.

[venks80]

Hi karan,
What is reason of denial. Bz iam in the same boat, thing is just reverse.
Iam in the process of extension. i dont know whether i will get the extension or not.
still in delemma. Could you please tell me whts reason of denial.

Thanks
kumar

Hello Gurus

I have been reading this forum and based on the information I am about to submit AINP application for myself (primary applicant) and my wife (co-applicant). My H1 is valid till Oct 2009 and we have applied for her H1 extension which got denied yesterday. I was planning to send her Passport copy (including  H1 visa stamped and I-94) but as both are not valid anymore and she is out of status, so she will be leaving for India in next one week.

As I am so close of submitting the application I am not sure what are my options now. Can I still send the documentation indicating her job title, company name and passport copies (with expired/denied visa)? Also, as she is still in US so I can not mention her traveling dates to India and similarly can not provide her H4 visa details.

Can somebody help me out with this critical situation.

Thank you

Karan