H4 Extension after I94 expiry

[balasundaram vaidy]

Hi Friends,

Can you please advise me on the below:-

My H1B extension(just upgraded to PP) is in progress and I wasn't aware that I should apply separate H4 extension for my wife, who's I 94 expired 30th Sep 2016. My employer has asked me to hire a private attorney to process H4 extension, since the I 94 is expired. My wife was planning to go to India for few months as we just had a baby( 15th of Nov).
1) Is it necessary for me to contact an attorney and file a NPT H4 extension? or is it ok, if my spouse leaves USA and then comes back with a new stamping based on my approved extension?
2) If I don't file NPT now, will there be a problem while I am in I 485 stage, as I am planning to apply for Green Card later this year in EB1.
3) Since my wife was out of status while she delivered the baby, will there be problem for my child's citizenship?

Thanks,
Bala

[newacct]

1) Is it necessary for me to contact an attorney and file a NPT H4 extension?

you can do that

or is it ok, if my spouse leaves USA and then comes back with a new stamping based on my approved extension?

that's okay too

2) If I don't file NPT now, will there be a problem while I am in I 485 stage, as I am planning to apply for Green Card later this year in EB1.

Your wife should leave before 180 days after her I-94 expires, because leaving the US after accruing 180 days of "unlawful presence" will trigger a ban, and an untimely filing of extension of status does not stop accruing of "unlawful presence" if it is not approved. Also, after 180 days your wife will not be eligible for I-485 unless she leaves because the INA 245(k) which excuses her being out of status is only applicable if she has been out of status for less than 180 days since the last entry. If your wife leaves before 180 days and comes back, or if USCIS approves the extension of status, there is no problem.

3) Since my wife was out of status while she delivered the baby, will there be problem for my child's citizenship?

of course not