H4 Extension Pending, Travel, Overstay, VISA Stamping and I-485

[dhsa4]

Hi
I got the approval for H1b after PP request but decision on H4 extension is still pending. We have travel plans to India in 11/2018. I-94 for dependents expired in 09/2018. Per my understanding once we leave the US, pending I-539 will become invalid and their stay (wife & son) will be considered as "Overstay" or "Un-lawful" presence from 09/2018-11/2018 (almost 55 days). We have to go for VISA stamping and later we have to file I-485 also. My concerns are:
1. How this overstay will impact the VISA stamping and approval in New Delhi
2. How this overstay will impact our future I-485 filing
3. What documents I should carry along with I-539 notice received in 05/2018
Please share your experience or provide any guidance as we have to visit for some family issues and cant reschedule this visit.
Thank you in advance.

[newacct]

Hi
I got the approval for H1b after PP request but decision on H4 extension is still pending. We have travel plans to India in 11/2018. I-94 for dependents expired in 09/2018. Per my understanding once we leave the US, pending I-539 will become invalid and their stay (wife & son) will be considered as "Overstay" or "Un-lawful" presence from 09/2018-11/2018 (almost 55 days). We have to go for VISA stamping and later we have to file I-485 also. My concerns are:
1. How this overstay will impact the VISA stamping and approval in New Delhi
2. How this overstay will impact our future I-485 filing
3. What documents I should carry along with I-539 notice received in 05/2018
Please share your experience or provide any guidance as we have to visit for some family issues and cant reschedule this visit.
Thank you in advance.

No, it's not "overstay". You are allowed to stay in the US while Extension of Status is pending, as long it was filed before your previous status expired. Leaving while Extension of Status is pending is perfectly fine.

[dhsa4]

No, it's not "overstay". You are allowed to stay in the US while Extension of Status is pending, as long it was filed before your previous status expired. Leaving while Extension of Status is pending is perfectly fine.

Hi
Thank you for feedback. I think I didn't explain my concern properly.
Leaving is fine while I-539 is pending, but once you are out of US, pending I-539 will be considered as invalid or abandoned.
As pending I-539 is abandoned, if I-94 is already expired (like in my case) and even if you have filed the I-539 extension before I-94 expiration date, any stay from expiration date to departure date will be considered as "Overstay"
Do I have to mention this overstay in DS160 applying for VISA Stamping interview?
As I scheduling the interview in advance, I am not sure by that departure time I'll get the H4 extension approval or not. So what should I file in DS160 under "overstay section"?
please advice.

[newacct]

Hi
Thank you for feedback. I think I didn't explain my concern properly.
Leaving is fine while I-539 is pending, but once you are out of US, pending I-539 will be considered as invalid or abandoned.
As pending I-539 is abandoned, if I-94 is already expired (like in my case) and even if you have filed the I-539 extension before I-94 expiration date, any stay from expiration date to departure date will be considered as "Overstay"
Do I have to mention this overstay in DS160 applying for VISA Stamping interview?
As I scheduling the interview in advance, I am not sure by that departure time I'll get the H4 extension approval or not. So what should I file in DS160 under "overstay section"?
please advice.

No, it is not "overstay". First, there is no term "overstay" in the law. You do not accrue "unlawful presence" while a timely-filed, non-frivolous Extension of Status is pending, even if it is later denied or abandoned. You do not need to say yes when you are asked whether you have violated the terms of your visa, if you left while the Extension of Status was pending.

[dhsa4]

No, it is not "overstay". First, there is no term "overstay" in the law. You do not accrue "unlawful presence" while a timely-filed, non-frivolous Extension of Status is pending, even if it is later denied or abandoned. You do not need to say yes when you are asked whether you have violated the terms of your visa, if you left while the Extension of Status was pending.

Thank you Sir for this feedback. It gave me lot of confidence. Appreciated.