Dear Atty. Lou,
I came to the U.S. on an H1B in July 1999. My family arrived here in the US in January 2000 as H4 visa holders. Unfortunately, the company who petitioned me laid-off employees, including me due to company’s lack of budget
After six months, I found a new employer who is willing to sponsor me. I was able to file a labor certification prior to April 30, 2001 deadline to be covered by 245i. After two years of waiting for the labor certification approval, we got a letter from Labor Dept seeking further evidence to show my salary wage. It turned out that my lawyer filed a wrong category for my position with a higher salary than what I am receiving that time. Since the lawyer didn’t want to contest and admit their faults with the Labor Dept., my employer was prompted to withdraw the application to correct and then refile it again,
I terminated my first lawyer and hired another one that would do the right filing for me and my dependents. My previous lawyer didn’t file me a new H1B visa since he said that filing a labor certification would be sufficient enough. Then on December 2005, I was arrested by USCIS for overstaying and working without permit, just the same time when I received my labor certification approval. They didn’t detain me but served me a Notice to Appear or an NTA. I’m now in removal proceeding for 3 1/2 years with the adjustment of status as my relief.
Since the first day in court, the Immigration Judge always grant me continuance awaiting approval of my I140 which also lasted for 3 years since Jan 2006 due to background checking as what we were told. Even though I’m in court, my lawyer was able to file my Adjustment of Status application when the visa became current last July 2007. I already received my EAD card and have already renewed it.
My I140 was only approved last April 2009 after filing a mandamus action in court. Upon approval of the I140, my lawyer filed a motion to close the case in order for my dependent to file an adjustment of status application even though the visa was unavailable. The motion was denied because of unavailable visa and was granted continuance until the next hearing which will be on Oct 9, 2009 awaiting the availability of the visa. Come Oct 9, and my priority date is not current, the judge said that we should seek the relief of voluntary departure. Oct visa bulletin states that the priority date is June 1, 2002. Mine was Dec 16, 2003.
My lawyer said not to worry as we will make an appeal with the BIA. Atty. Lou is appeal the only option for my case? Can he not file for a motion to continue awaiting my priority date to be available? It seems unfair that we would be sent home just because the visa retrogressed, even though my application was filed properly. What shall I do? The judge granted me continuance awaiting my I140 approval, why can’t he grant that now when the only thing we’re waiting is the visa availability? What are our chances not to be sent home?
Atty., please help me and enlightened my confusions. Your opinion and suggestions will be very much appreciated.
Confused and Desperate
Dear Confused and Desperate,
Filing a labor certification will not actually toll the expiration of your H1B nonimmigrant visa. There was an error in your belief that the filing of the labor certification will be in lieu of your extending your H1B visa. You should have filed a timely extension of your H1B to avoid being taken into ICE custody.
You mentioned that your priority date is December 16, 2003 and I assume that you fall under the third preference employment based category. In July 2007, additional visas were issued and that the third preference category became current. This means that you were permitted to file for your adjustment of status. Unfortunately, until your visa priority date is current this adjustment of status may not be approved even if it has been pending for a long time.
If you are not in removal proceedings, you may be in the US with an employment authorization awaiting for your priority date to become current. However, since you are in removal proceedings, the immigration court is bound by pertinent rules that require them to timely adjudicate the cases they have pending before them. They can exercise their discretion in granting a continuance on your case which it did while awaiting for the retrogression to be lifted and for the visa priority date to become current. The number of times you may postpone the case is limited and if you have been asking for a continuance on your case since you were put in proceedings three years ago, the immigration judge may have no choice but to require you to seek a different relief which is “voluntary departure.”
Appeal to the BIA is a right you may have if the Immigration Judge denies your adjustment of status based on the lack of visa availability. You should raise valid reasons on your appeal. Continuing the case until retrogression is lifted may be granted only as a matter of discretion. Now if pending appeal, the visa becomes available, then you may move to re-open your case and have the adjustment of status re-adjudicated again.
If you seek for voluntary departure, you have to speak with your attorney about your chances of being able to return if the visa becomes available. If there is a period of unlawful presence of more than six months, you may have difficulty in returning if you depart voluntarily.
I understand the stress of undergoing removal proceedings but I do not believe that you are in dilemma. You may exercise your right to appeal up to the judicial courts if you have to. I hope all these information is helpful.
Atty. Lou
*(Lourdes Santos Tancinco, Esq is a partner at the Tancinco Law Offices, a Professional Law Corp. Her office is located at One Hallidie Plaza, Ste 818, San Francisco CA 94102 and may be reached at 415.397.0808; email at law@tancinco.com or check their website at tancinco.weareph.com/old. The content provided in this column is solely for informational purpose only and do not create a lawyer-client relationship. It should not be relied upon as legal advice. This column does not disclose any confidential or classified information acquired in her capacity as legal counsel. Consult with an attorney before deciding on a course of action. You can submit questions to law@tancinco.com
