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Need your advice on the H4 status

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  • Need your advice on the H4 status

    My wife's H4 visa expired on June 12 2022, I-94 has the same
    expiration (June 12 2022) but we did file for her H4 extension in Nov
    2021 and got it approved based on her renewed Indian passport. Her old
    passport expired on Nov-17-2021 and so had to apply for a new passport
    on August-15-2021.

    This way her I-94 attached in the approved I-539 got the extended
    valid stay upto Nov-04-2024. Now since we have an approved I-539 and
    also my approved I-797A, she alone travelled to India on Feb-18-2022
    and came back in March-16,2022 but DID NOT go for stamping since her
    Visa was still valid till June 22 2022. And the CBP officer at port of
    entry gave her I-94 only based on her Visa validity ie., June 22 2022
    and not based on approved I-797A(my h1b petition) or I-539 (approved H4 petition) which has the new extended

    As I am planning to go to India next month on April 28th 2023, I
    started digging into the documents and noticed that her I-94 number is
    different from the one she had earlier with the expired visa back on
    June 12 2022. And the earlier I-94 is where the USCIS had their
    extension of I-539 tagged with new validity as she hasn't attended a
    visa interview/stamping during the 2022 visit.

    Below are some of my questions for you.

    1. In this case, where her current I-94 has validity only till Jun
    2022 last year, will she be considered Out of Status since then June
    22 2022? She travelled to India - Yesterday 03/15/2023.
    2. Is there a way to have her I-94 extended?
    3. Now that her Visa has expired and she is expected to go for
    stamping; do we foresee any issues if she goes for stamping alone with
    her current approved I-539, my I-797A, her current I-94 (which has
    validity only till Jun 2022).​

    Any help here would be appreciated!!


  • #2
    1. yes
    2. Generally, one can't apply for Extension of Stay after status is expired unless there is good cause for the late filing. However, there is a good case to be made that she should have been admitted until your H1b petition expiration date, if she had shown them a copy of your H1b petition approval at the time of entry. So she can try contacting a CBP deferred inspection office and try to get her I-94 corrected. Do not mention her previous Extension of Stay, as that is irrelevant; her stay (and I-94 from the EOS approval) ended when she left the US. Another possibility is that your company might file nunc pro tunc Extension of Stay arguing that they forgot to file for her, but this is risky as she is not protected from accruing unlawful presence during this time, and the argument doesn't really work as it's not your company's job to check the length of her stay after her trip abroad.
    3. If she does not get her I-94 corrected, yes, there is a big issue, because she accrues unlawful presence if she stays past the date on her I-94. She will have accrued between 180 days and 1 year of unlawful presence when she leaves the US, so she will trigger a 3-year ban from the date of leaving.

    This is my personal opinion and is not to be construed as legal advice.


    • #3
      Wait, did the I-94 from her EOS approval start June 22, 2022? Because if so, it's possible that it activated and superseded the I-94 she got at her last entry (effectively extending her H4 status until Nov 4, 2024) because usually the latest I-94 counts. I'm not sure about whether this works when it's a new stay though. If this is true, then she might not need to do anything.

      This is my personal opinion and is not to be construed as legal advice.


      • #4
        It sounds like you have a complex immigration situation on your hands. I'll do my best to answer your questions based on the information provided, but keep in mind that you may want to consult with an immigration attorney to get a more specific answer to your case.
        1. Based on what you've described, it seems that your wife has been out of status since June 12, 2022, which was the expiration date of her H4 visa and I-94. However, if she left the US before her I-94 expired and returned with a valid visa before her next entry, she may have been readmitted to the US under her previous I-94. It's important to confirm this with an immigration attorney to make sure she hasn't accrued any unlawful presence.
        2. If your wife is currently in the US, it's unlikely that her I-94 can be extended. However, if she leaves the US and reenters with a valid visa, she may be given a new I-94 with an extended expiration date based on her approved I-539.
        3. If your wife goes for visa stamping echatrandom with an expired visa and an I-94 that only has validity until June 2022, she may have trouble getting her visa renewed. However, if she can show that she has an approved I-539 with a new expiration date and spin your approved H1B petition, it may help demonstrate that she is eligible for a visa renewal. Again, it's best to consult koows with an immigration attorney to assess the risks and options in this situation.

        Overall, I recommend consulting with an immigration attorney to get a more specific and accurate answer to your questions. Immigration laws and policies are complex and constantly changing, so it's important to stay informed and seek professional guidance when necessary.
        Last edited by TeetharKehar; 03-31-2023, 04:23 AM.


        • #5

          hi , I am not seeing any option to create new post so adding here..


          I wanted to ask you some advice about my current valid visa status..As I came here in USA on dependent H4 visa in year 2014(valid till March 1st 2024) on My Husband H1B visa. He got his PR in last year (September 5th 2022).
          Also I have H4-EAD valid same as H4 date. also I have 8 year old kid born here.

          but now my husband has filed divorce and send notice in an email last week and is not sharing anything about my current valid status if he filed for my PR or not..So I am not sure what status I am currently now..

          Can you please help me please what action step should I take to know my current valid visa? please advice. Thanks!​