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H4 Overstay less than 180 days - Options ?

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  • H4 Overstay less than 180 days - Options ?

    Hi all,

    My wife is on H4 and her I-94/Visa in PP expired on April 30th 2008. My H1B was tranferred in 2007 and employer/attorney forgot to apply for H4 extension. Now she is out of status as she doens;t have her I797 for H4.

    What are the options I have ?

    I heard if its less than 180 days, extension (I539) can be applied ? Will this help ? Does anyone has latest info on this kind of case ? If yes from what date will it be valid from ? Will this not cause problems if its not from April 30 2008?

    One more option is to go to Home country and get visa stamped. The only problem is if then find out about the overstay. The Passport has the arrival stamp in it. If they see that will they not cause problem ?

    Any other options ? Please let me know ASAP.

    Thanks !!

  • #2
    Hi RM77

    I dont know exact answer but I have found similar post in other forum. This might be helpful.

    However, see a good attorney as I am not a lawyer.

    More Seniors please confirm this.

    Just an update for someone else who is researching on this issue. I got my wife's retroactive approval and it is such a relief. One of the things I struggled with was the lack of information on this matter and I think it is my responsibility to help others now who are in the same situation. I searched and searched for hours to get information on this matter.........

    Any ways, if you find out that the H4 extention was not filed timely, you need to first calculate the no of days. If it is less than 180 days, you can leave the country and re-apply for stamping in your home country without the fear of a bar. If it is more than 180 days but less than a year, you SHOULD NOT LEAVE. Leaving means triggering a 3 year bar from reentry. In this situation your only option is to apply for a retroactive approval also called a nunc pro tunc. Gather all the evidences, extra ordinary circumstances, hospitalizations etc. Also, if it was your employer's or attorney's fault, get a letter from them saying that it was their mistake. File for an extension ASAP and hope for the best. Retroactive approvals are discretionary.....even if you get denied and you have a strong case, you can file a MTR or an appeal. It is not the end of the world.

    Contact your local COngress representative and ask him/her to help. In my case, I got help from my local congressman and a letter from my employer saying that they can not offord to loose me.

    Also, get a good attorney who has handled several such cases. These cases are different and difficult, so your attorney has to be good.

    Hope this helps those on similar situations.
    I am not a lawyer and this is not a legal advice. Use it at your own risk. Consult professionals before getting into an action.


    • #3
      Look into nunc pro tunc by searching on the forum and google. There are associated risks with it and one should leave before 180 days and get a chance to enter back. If not, you automatically earn a 3 year ban.

      A lawyer consultation is the best option.

      I am not a lawyer and you need to consult with one to validate any info posted on the forum and discuss your case specifics. H1b Question? Read the FAQ first.