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  • I94 Expired Forgot to do H4 Extension

    hi

    I forgot to apply for H4 Extension for my Family
    My Spouse and kid I94 is expired on Sep 30 2016
    (4 and half months before - already accrued 130 days of unlawful presence)
    I have valid H1B/I94 till Mar 2019

    I discussed with known sources (soon will discuss with attorney)
    As you all know, nunc pro tunc filing can be done with back dated application (reason to say "Forgot to file H4 Extension" with notarized affidavit, with other necessary explanation)

    Questions - whether to go with Option1 or Option2:

    1) since already 130 days passed (180 is the MAJOR problem) - filing I539 with NPT and get the receipt before 180 days - and continue to stay?
    the decision will surely come after 5 months or so , which case my spouse will cross that 180 Days even though have the filing receipt in hand
    so is the filing receipt of I-539 with NPT, is this enough to continue stay even though cross 180 days?
    Because USCIS may approve the back dated I-94 , or approve from the date of filing which would be on the 130th day.

    2) Traveling to India back before 180 days (or even before that) - and get H4 stamping and return to US ?
    Traveling itself is not a problem, but will there be any questions during visa stamping - if so what kind of questions
    Just we Forgot to apply for the H4 extension, it's my mistake - but how do we truthfully explain the situation during visa stamping especially my spouse and kid go alone for the visa stamping

    Thanks,
    by the way, I know it's unlawful presence and i know all the consequences like denial, I94 date on the date of approval, 3 year bar, 10 year bar etc -
    so I would greatly appreciate if you could tell me answers for my questions directly,

  • #2
    Originally posted by newlook View Post
    hi

    I forgot to apply for H4 Extension for my Family
    My Spouse and kid I94 is expired on Sep 30 2016
    (4 and half months before - already accrued 130 days of unlawful presence)
    I have valid H1B/I94 till Mar 2019

    I discussed with known sources (soon will discuss with attorney)
    As you all know, nunc pro tunc filing can be done with back dated application (reason to say "Forgot to file H4 Extension" with notarized affidavit, with other necessary explanation)

    Questions - whether to go with Option1 or Option2:

    1) since already 130 days passed (180 is the MAJOR problem) - filing I539 with NPT and get the receipt before 180 days - and continue to stay?
    the decision will surely come after 5 months or so , which case my spouse will cross that 180 Days even though have the filing receipt in hand
    so is the filing receipt of I-539 with NPT, is this enough to continue stay even though cross 180 days?
    Because USCIS may approve the back dated I-94 , or approve from the date of filing which would be on the 130th day.

    2) Traveling to India back before 180 days (or even before that) - and get H4 stamping and return to US ?
    Traveling itself is not a problem, but will there be any questions during visa stamping - if so what kind of questions
    Just we Forgot to apply for the H4 extension, it's my mistake - but how do we truthfully explain the situation during visa stamping especially my spouse and kid go alone for the visa stamping

    Thanks,
    by the way, I know it's unlawful presence and i know all the consequences like denial, I94 date on the date of approval, 3 year bar, 10 year bar etc -
    so I would greatly appreciate if you could tell me answers for my questions directly,
    Considering that already 130 days have passed, option 2 seems appropriate, but better to discuss with an attorney. The sooner you talk to your attorney the better it would be.

    This is my opinion not legal advice.

    Comment


    • #3
      Hi,

      I am in the same situation. My wife's I-94 and visa expired on Sep-05-2016. My employer and me completely forgot to apply for extension for my wife.

      I thought to apply for NPT, but the lawyer was saying the decision will come after 5 months and by that time your wife will accumulate almost 11 months. If the decision is not in your favor then your wife may be blocked for 3 years. I also asked the lawyer what are the chances that it gets approved and she said 80% cases it gets approved. But I didn't want to take the 20% risk so I did not choose that route.

      As we talked with few other lawyers and one of them advised to request USCIS about my pending H1B amendment (normal process) to convert to premium processing and club my wife's I-539 along with it. Also attach all the supporting documents for I-539 application. We have done it last week and we got the receipt for both of us. I am still not sure they will do my wife's I-539 in premium or not. If not then my wife will leave the country asap.

      Please keep updating this post so I can also know what to do!

      Thanks!
      Last edited by mcasanket; 02-14-2017, 10:23 PM.

      Comment


      • #4
        I still didn't get reply yet from Attorney

        but looks like they are willing to file NPT filing with back dated I-94

        But my family is willing to travel to India and get the H4 stamping , and return to US.
        Most likely there will not any problem 99%.
        And once they return after getting the stamping, all problems resolved.

        But If i file NPT filing, then they cannot go India until the decision is made. and we need to live in tension for next 5 months, with crossing 180 days.
        Also the decision is likely to be approved with back dated I-94, but any error will make things worse.

        But still waiting for Attorney's opinion, before we make our final decision

        Hi mcasanket,
        Did the attorney tell you , what date they will approve the I539 with back dated I94?
        and also that with the receipt of I539, is that 180 days crossing is OK?
        Last edited by newlook; 02-15-2017, 02:38 PM.

        Comment


        • #5
          Originally posted by newlook View Post
          I still didn't get reply yet from Attorney

          but looks like they are willing to file NPT filing with back dated I-94

          But my family is willing to travel to India and get the H4 stamping , and return to US.
          Most likely there will not any problem 99%.
          And once they return after getting the stamping, all problems resolved.

          But If i file NPT filing, then they cannot go India until the decision is made. and we need to live in tension for next 5 months, with crossing 180 days.
          Also the decision is likely to be approved with back dated I-94, but any error will make things worse.

          But still waiting for Attorney's opinion, before we make our final decision
          Yes, NPT is little risky as the decision will come almost after 5 months and by that time they will be unlawfully stayed more than 10 months. If the decision comes against us then it will be worse than now! I think if they go back to home country at least they will not be blocked for years and will come back after sorting out everything. This is what I think. Also if your wife is planning to travel avoid some airlines like British Airways and few more. They will not allow to board a plane with invalid visa.

          My wife is eligible for Dropbox but when we talked with one lawyer, she was saying she is not eligible for Dropbox as she is in unlawful presence. But when I answer the questionnaire it shows she is eligible. If you contact the Attorney please ask about Dropbox also and what should we expect if they go back to India?

          Please keep updating this post!

          Thank you!
          Last edited by mcasanket; 02-15-2017, 05:32 PM.

          Comment


          • #6
            Any updates?

            Comment


            • #7
              Discussed with Attorney and is also saying , either do a NPT filing or travel back to the country

              I think NPT filing would be correct approach to follow

              -Asking USCIS to correct the situation with the filing

              -Even if the decision takes 5 months, still it's ok, because she will get the Valid I-94 in hand

              -If 180 days are crossed before the decision, still no problem as long as the person stay in the US.
              when next time travel back , most likely no issues even if we go for H4 stamping, because we would have filed I-539 before 180 days.
              (Even if anybody files NPT after 180 days , still there is no issue as long as that person does not have criminal record background)
              I heard many cases in the last few days, when it comes to H4 especially, there is no issue.
              one case, the spouse overstayed for 11 months unknowingly, traveled back to India, got the H4 stamping and returned to US. no questions asked.
              Also if you google , you would not find a single case of 3/10 years ban because of H4 overstay.
              However we cannot also depend on these, because law is a law.

              -If the I-94 approval date is on the approving day, she still accrue more than 180 days. Hopefully they approve on the filing date.

              -Traveling back to India and get H4 stamping is also a safer idea, but why to leave the country if there is a way to correct this situation truthfully.
              she did not intentionally overstay (99% Indian people won't do that.), It's my mistake and company's.
              Last edited by newlook; 02-16-2017, 06:47 PM.

              Comment


              • #8
                Let us know which path you are taking! Also please ask your attorney that if they go to India will they be eligible for Dropbox as they are currently illegal!?

                Thanks

                Comment


                • #9
                  Originally posted by newlook View Post
                  Discussed with Attorney and is also saying , either do a NPT filing or travel back to the country

                  I think NPT filing would be correct approach to follow

                  -Asking USCIS to correct the situation with the filing

                  -Even if the decision takes 5 months, still it's ok, because she will get the Valid I-94 in hand

                  -If 180 days are crossed before the decision, still no problem as long as the person stay in the US.
                  when next time travel back , most likely no issues even if we go for H4 stamping, because we would have filed I-539 before 180 days.
                  (Even if anybody files NPT after 180 days , still there is no issue as long as that person does not have criminal record background)
                  I heard many cases in the last few days, when it comes to H4 especially, there is no issue.
                  one case, the spouse overstayed for 11 months unknowingly, traveled back to India, got the H4 stamping and returned to US. no questions asked.
                  Also if you google , you would not find a single case of 3/10 years ban because of H4 overstay.
                  However we cannot also depend on these, because law is a law.

                  -If the I-94 approval date is on the approving day, she still accrue more than 180 days. Hopefully they approve on the filing date.

                  -Traveling back to India and get H4 stamping is also a safer idea, but why to leave the country if there is a way to correct this situation truthfully.
                  she did not intentionally overstay (99% Indian people won't do that.), It's my mistake and company's.
                  HI newlook

                  Please share your updates. What was final decision? We are in same boat where H4 I94 is expired since 18 days and NPT is filed but attorney has suggested to leave country in next few weeks if possible.

                  Comment


                  • #10
                    I was in the same boat except that my husband realized that he forgot to apply for my H4 one day before my visa expiry. I applied for my H4 extension and it reached USCIS on 9th Aug 2016. My visa and I94 was expiring on 8th Aug 2016. So, ideally the last day for my petition to reach to uscis was 8th aug and I was late by one day only. I decided to stay back in the country and I got my extension approved within 2 months.

                    Comment


                    • #11
                      Originally posted by agar02 View Post
                      I was in the same boat except that my husband realized that he forgot to apply for my H4 one day before my visa expiry. I applied for my H4 extension and it reached USCIS on 9th Aug 2016. My visa and I94 was expiring on 8th Aug 2016. So, ideally the last day for my petition to reach to uscis was 8th aug and I was late by one day only. I decided to stay back in the country and I got my extension approved within 2 months.
                      Hi agar02

                      Thanks for update.
                      Would you mind, if you can provide more details in your case, What date is was approved and which processing center, it went through.
                      Appreciate your response.

                      Thanks

                      Comment


                      • #12
                        Originally posted by agar02 View Post
                        I was in the same boat except that my husband realized that he forgot to apply for my H4 one day before my visa expiry. I applied for my H4 extension and it reached USCIS on 9th Aug 2016. My visa and I94 was expiring on 8th Aug 2016. So, ideally the last day for my petition to reach to uscis was 8th aug and I was late by one day only. I decided to stay back in the country and I got my extension approved within 2 months.
                        They will typically approve it 10 days or less has passed since the last one expired.
                        This is purely my opinion and does not constitute legal advice.

                        Comment


                        • #13
                          Thank God,
                          It's approved . And in the new I-94 the gap is also covered.
                          I will be careful in future.

                          Comment


                          • #14
                            Hi Newlook

                            Originally posted by newlook View Post
                            Thank God,
                            It's approved . And in the new I-94 the gap is also covered.
                            I will be careful in future.
                            Hi Newlook

                            Was your application processed at Vermont or California ?

                            Comment


                            • #15
                              H4 Not filed and I 94 expired

                              Originally posted by newlook View Post
                              Thank God,
                              It's approved . And in the new I-94 the gap is also covered.
                              I will be careful in future.


                              hello Newlook

                              Please share you no i am in the same issue now
                              My H1 is approved now and i see H4 was not filed and I94 is expired in mid of July
                              My kids school is about to start and is there any good path to proceed?

                              Please advise

                              Regards
                              Shashi

                              Comment

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