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H1 approved H4 for wife denied...urgent...out of country

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  • H1 approved H4 for wife denied...urgent...out of country

    Hi,

    My husband left the country to go to India (while premium processing for his H1 and my H4 were filed). I stayed back with the kids in US. Both of our current visas our valid until Sept 2016. We initially got a RFE for his H1 (because he was out of country). After replying, his H1 was approved last week but my I got a notice today saying my H4 is denied. The USCIS letter says that since my authorized stay in the US is dependent on a valid H1-b holder's status, the requested extension of status may not be granted since he has not yet entered the US in a non immigrant status.

    Unfortunately, none of the consulates in India have any openings for visa appointments until end of August. Assuming he doesn't get 221g or anything of the sort, he'll be back in the country 1st week of Sept. I wanted to know:

    1) Do I file for a new petition after he comes back to the states (without the need to leave the country)?
    2) Do I step outside the country right now and stamp it...will they approve it because his petition is approved?
    3) Do I step outside US after he comes back and has a new I-94?
    4) When I stamped my visa at Mumbai in 2013, I got a 221g (for my H4, based on my previous work), does this mean I'll get another 221g this time as well and I may be stuck there?

    Thanks,

  • #2
    Originally posted by umamahajan View Post
    Hi,

    My husband left the country to go to India (while premium processing for his H1 and my H4 were filed). I stayed back with the kids in US. Both of our current visas our valid until Sept 2016. We initially got a RFE for his H1 (because he was out of country). After replying, his H1 was approved last week but my I got a notice today saying my H4 is denied. The USCIS letter says that since my authorized stay in the US is dependent on a valid H1-b holder's status, the requested extension of status may not be granted since he has not yet entered the US in a non immigrant status.

    Unfortunately, none of the consulates in India have any openings for visa appointments until end of August. Assuming he doesn't get 221g or anything of the sort, he'll be back in the country 1st week of Sept. I wanted to know:

    1) Do I file for a new petition after he comes back to the states (without the need to leave the country)?
    2) Do I step outside the country right now and stamp it...will they approve it because his petition is approved?
    3) Do I step outside US after he comes back and has a new I-94?
    4) When I stamped my visa at Mumbai in 2013, I got a 221g (for my H4, based on my previous work), does this mean I'll get another 221g this time as well and I may be stuck there?

    Thanks,
    I would advise leaving US and attending visa stamping along with your spouse.

    Merely having a job does not seem a reason for a 221g. Was is it in a TAL list?

    This is my opinion not legal advice.

    Comment


    • #3
      Originally posted by raghvi View Post
      I would advise leaving US and attending visa stamping along with your spouse.

      Merely having a job does not seem a reason for a 221g. Was is it in a TAL list?

      This is my opinion not legal advice.
      Thanks, yes in TAL, so will I get another 221g when I stamp (that's the only reason I was thinking if it was possible to apply for the extension without leaving the country)?
      Also, my visa is based on our old old I-94 but my husband has a new date because of his approval, so is my status in US still valid until Sept 2016?

      Comment


      • #4
        Touche

        Hi. The same thing happened to me & my wife/kids 2 years ago. I had to travel out of the country urgently (personal matter) and I left my wife/kids behind. My H1 was applied for extension a week after I was gone and got RFE. My wife and kids H4 came back as denied while I was in India after my H1 was approved and I had 797. Lawyer advised my wife to stamp her H4 visa in India after I got my I94. Was a mess as I couldn't get a visa spot for 2.5 months in chennai consulate & my wife had to leave the country within 180 days of H4 denial. She ended up traveling to India with the kids just before my visa appt, I ended up with a 221g. We had booked a visa appt for her/kids which had to be cancelled per lawyers advice (just was hoping for no 221g and taking advantage of available visa dates). I had to travel back to my job (glad I still had it considering I was out 3.5 months), and then with my new I 94 she went for stamping for H4 ( after a 2.5 month wait to get visa appt) and she got a 221g. Sigh. Took a month and a half to clear that. Then she travelled back home admirer 4 months! It's a messed up process I tell ya! My wife had to quit her job, my older one was kicked out of public school (2nd grade) and we had to have her repeat the grade to catch up as my wife/kids were out of the country 4 months. Tough times.

        I assume You will take your lawyers advice. But go to India and get your stamping after ur hubby gets his. As long as you leave the country within 3 months. U may want to wait for his I 94 though to be absolutely in the white!

        Comment


        • #5
          Originally posted by Karthik_1998 View Post
          Hi. The same thing happened to me & my wife/kids 2 years ago. I had to travel out of the country urgently (personal matter) and I left my wife/kids behind. My H1 was applied for extension a week after I was gone and got RFE. My wife and kids H4 came back as denied while I was in India after my H1 was approved and I had 797. Lawyer advised my wife to stamp her H4 visa in India after I got my I94. Was a mess as I couldn't get a visa spot for 2.5 months in chennai consulate & my wife had to leave the country within 180 days of H4 denial. She ended up traveling to India with the kids just before my visa appt, I ended up with a 221g. We had booked a visa appt for her/kids which had to be cancelled per lawyers advice (just was hoping for no 221g and taking advantage of available visa dates). I had to travel back to my job (glad I still had it considering I was out 3.5 months), and then with my new I 94 she went for stamping for H4 ( after a 2.5 month wait to get visa appt) and she got a 221g. Sigh. Took a month and a half to clear that. Then she travelled back home admirer 4 months! It's a messed up process I tell ya! My wife had to quit her job, my older one was kicked out of public school (2nd grade) and we had to have her repeat the grade to catch up as my wife/kids were out of the country 4 months. Tough times.

          I assume You will take your lawyers advice. But go to India and get your stamping after ur hubby gets his. As long as you leave the country within 3 months. U may want to wait for his I 94 though to be absolutely in the white!
          This is exactly the situation we are in. So is my current H4 valid (until Sept 2016?) and do you recommend leaving the country and stamping together or stamping after his svisa is approved? After his stamping is done, does he need to be in US before I go in for my Visa appointment? So confused!! Thanks so much

          Comment


          • #6
            Touche

            Seems like you are in the same boat. Not a great place to be.
            When my wife's H4 got denied, I was advised by my lawyer at the time for my wife & kids to go to India - home country (only. Do not do Canada/Mexico) and get the stamping. It's a slam dunk if you go after your hubby gets his new I94. Lesser chances of a 221g. But going either with him or after him is okay I was told. Definetely not before him. And that wasn't possible for us due to visa dates anyway. All the advice we diligently followed didn't matter as we both ended up with 221g's anyway. Go figure.
            You are not unlawfully staying in the US if you have a valid I94 with you - that's first as far as I was told by the lawyer. This is up to 180 days. After that it gets tricky : 180 days - 2 yrs you are subject to a 3 yr ban from entering USA and beyind that it's a 10 year ban. I was told by the lawyer that my wife & kids are not "out of status" as they had a valid I94, if they did then they had to leave asap.
            Hope this helps?

            - - - Updated - - -

            Last line must read: if they didn't have a valid I94 they must leave ASAP.

            Comment


            • #7
              Touche

              I was told by the lawyers at the time that her old H4 is irrelevant as the extension was denied. Not sure how that pertains to its validity honestly. But, does not put her in an unlawful out of ststus because my H1 was approved at the time and we had the 797 in hand and she had a valid I94. That's why the <180 day rule applied, as that's the time given to you to fix your ststus back without being reported on it. The H4 was simply denied because it is entirely dependent on the H1 who was out of the country. As always, I was the cause of her problem 😜 Does that make sense?

              Comment


              • #8
                Touche

                I was told by the lawyers that there is another way to reinstate H4 ststus (works retroactively once approved, hence you are never really out of ststus) - filing I539. We didn't do this as we thought going to India with a visa appt right after my stamping would be quicker and safer. Didn't expect my 221g as it was right after RFE. Ask your lawyer about theI539 option besides the stamping too.

                Typing all this has made me relive the hell we went through. Lesson learned was that me leaving the country was a hasty decision when I knew my H1 extension was pending. Told myself and the lawyer (who did not tell me about the risks) that it was an emergency. And it was (my mother was very ill & passed away while we were all in India fighting the visa battle) - but can't deny that me rushing to India was just a dumb thing to do. What are brothers & sisters for?! 😜 Postponing by a week would've made all the difference in visa approvals & stamping a for the entire family. Oh well - hindsight 20/20 eh?!

                Comment


                • #9
                  Originally posted by Karthik_1998 View Post
                  I was told by the lawyers that there is another way to reinstate H4 ststus (works retroactively once approved, hence you are never really out of ststus) - filing I539. We didn't do this as we thought going to India with a visa appt right after my stamping would be quicker and safer. Didn't expect my 221g as it was right after RFE. Ask your lawyer about theI539 option besides the stamping too.

                  Typing all this has made me relive the hell we went through. Lesson learned was that me leaving the country was a hasty decision when I knew my H1 extension was pending. Told myself and the lawyer (who did not tell me about the risks) that it was an emergency. And it was (my mother was very ill & passed away while we were all in India fighting the visa battle) - but can't deny that me rushing to India was just a dumb thing to do. What are brothers & sisters for?!  Postponing by a week would've made all the difference in visa approvals & stamping a for the entire family. Oh well - hindsight 20/20 eh?!
                  Thank you so much, this makes sense. I think I am planning to stamp after his visa, hoping that both of us do not get 221g. As long as all this works out in the end!!
                  Thanks again

                  Comment


                  • #10
                    Originally posted by Karthik_1998 View Post
                    I was told by the lawyers that there is another way to reinstate H4 ststus (works retroactively once approved, hence you are never really out of ststus) - filing I539. We didn't do this as we thought going to India with a visa appt right after my stamping would be quicker and safer. Didn't expect my 221g as it was right after RFE. Ask your lawyer about theI539 option besides the stamping too.

                    Typing all this has made me relive the hell we went through. Lesson learned was that me leaving the country was a hasty decision when I knew my H1 extension was pending. Told myself and the lawyer (who did not tell me about the risks) that it was an emergency. And it was (my mother was very ill & passed away while we were all in India fighting the visa battle) - but can't deny that me rushing to India was just a dumb thing to do. What are brothers & sisters for?!  Postponing by a week would've made all the difference in visa approvals & stamping a for the entire family. Oh well - hindsight 20/20 eh?!
                    One quick question: Does my husband need to be in the US physically when I go for my Visa appointment? Or can I go for the interview while he's in India as long as his Visa is approved? Did she need the original 797 (your H1- notice) or a copy worked?

                    Thanks,

                    Comment

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