Q: How to count days of OOS if my wife's I-94 has gap when file I-485?
My H1 expires Oct 1, 2014. I went back to my country and reentered US on J1 later that year. My wife did not travel back with me. She stayed in the US. After I got back, we filed her J2 application Feb, 2015 which was approved Nov, 2016. But her J2 I94 states the I94 is valid from Nov 2016 to D/S.
Now we are about to file I485 together. My question is how to count her days of OOS in the US. If we use days between Oct 1, 2014 and Nov, 2016 (time J2 was approved), then we have trouble with I485 cause OOS is clearly over 180 days. But if we count days between Oct 1, 2014 and Feb, 2016 (time J2 was FILED), then OOS is less than 180. Can anyone explain to me how should I count OOS days?
Thanks
A: Generally, when an application is filed, and that application is subsequently approved, the applicant did not accrue unlawful presence during the time the application is pending. If the application is denied, the unlawful presence accrues back to the time of filing. A bigger issue could be the fact that she filed the J-2 application after her earlier status expired. If such were the case, it is likely that the J-2 was approved in error, and USCIS could determine that your wife has more than one year of unlawful presence. We recommend that you consult with an immigration attorney and give precise details about your wife’s circumstances.
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