H4 extension not filed with H1, I-94 expired

[gchelp]

Scenario:-
I came in USA on a working Visa(H1-B) in 2003, got married in 2009 and my wife came with me on the a dependent Visa(H4). I was out of US for about 15 months from 2005-2006. My green card processing was initiated in May 2011 and PERM was approved in June and I-140 was approved last month.
My H1-B completed its designated 6 years in July-2011, an extension to this Visa was applied in May-2011 and there was a RFE(Request for Evidence) against it which was responded by the lawyers in Aug-2011 against the I-140 approval. Currently the Visa extension application is pending with USCIS and we are awaiting a response.
Along with my H1-B visa extension the lawyer did not file for my Wife’s H4 extension (I-539 form I guess) and hence she is out of status since July-2011.

what are the options:-
1. can we apply for my Wife H4 extension now? If yes how
2. as my H1 was expired before I-140 approval, will i get an H1 extension or not?

[kabkaba]

Scenario:-
I came in USA on a working Visa(H1-B) in 2003, got married in 2009 and my wife came with me on the a dependent Visa(H4). I was out of US for about 15 months from 2005-2006. My green card processing was initiated in May 2011 and PERM was approved in June and I-140 was approved last month.
My H1-B completed its designated 6 years in July-2011, an extension to this Visa was applied in May-2011 and there was a RFE(Request for Evidence) against it which was responded by the lawyers in Aug-2011 against the I-140 approval. Currently the Visa extension application is pending with USCIS and we are awaiting a response.
Along with my H1-B visa extension the lawyer did not file for my Wife’s H4 extension (I-539 form I guess) and hence she is out of status since July-2011.

what are the options:-
1. can we apply for my Wife H4 extension now? If yes how

Unfortunately she cannot extend status within the US. She is not just out of status but illegal. She must leave the US immediately and return on H4 Visa after your H1 status gets extended. Although company lawyer's may help filing the application, it is her responsibility to file extension before I-94 expires.

2. as my H1 was expired before I-140 approval, will i get an H1 extension or not?
It depends on when your last I-94 expired, if H1 extension is received by US before I-94 expiry, you are fine on that front.

See above.

[gchelp]

my I-94 expired on 7-Jul-2011, I-140 was applied on 3-Aug and approved on 18-Aug
initial H1 extension was filed on may-2011 then tehre was an RFE on it which was responded against I-140 approval on 22-Aug

[kabkaba]

Since your H1 extension was filed before your I-94 expiry and is still pending, you are in a period of permitted stay as long as it does not get denied. I-140 date does not matter.

Your wife however is illegal, she must leave the US and wait for your H1 to get approved. You can upgrade it to premium to get quick decision. After H1 is approved she wil have to obtain H4 Visa from a US consulate/embassy and then return in H4 status.
Consult an experienced lawyer to check if she can file backdated H4 extension, she will have to prove that circumstances did not allow her to file a timely extension. Chances are low on this front.

[gchelp]

In order to go for H4 stamping in India, should i go to a perticular counsulate where the chances of getting the Visa will be better than the other?

There were 2 situations around the time when H4 expired:-
1. The company lawyer missed filing the H4 extension as he did not look at the file properly and forgot about the dependent
2. My wife was admitted to the hospital for major surgery in July

During the H4 Visa Stamping interview if we are asked to explain the delay what are the suggested answers?

[kabkaba]

In order to go for H4 stamping in India, should i go to a perticular counsulate where the chances of getting the Visa will be better than the other?

She can apply anywhere.

There were 2 situations around the time when H4 expired:-
1. The company lawyer missed filing the H4 extension as he did not look at the file properly and forgot about the dependent
Company lawyer is only responsible towards the company and nobody else. It was her own responsibility to file it timely.

2. My wife was admitted to the hospital for major surgery in July
If this can be substantiated by documentation that she was unable to file before her I-94 date, it may work. Consult a lawyer.


During the H4 Visa Stamping interview if we are asked to explain the delay what are the suggested answers?

Truth is the only suggested answer.

See above.

[vbmehta]

Hi gchelp,
How was your experience with H4 extension, and the stamping procedure for the same?

See above.