H4 - I797 extension < H1B extension period -- Please help

[jiten1968]

I'm having a very complicated H4 renewal issue.

GC Status : 485 pending.

In Nov-2011 my company applied for H1B/H4 renewal for me and my family (wife, daughter & son) as my H1B was expiring in Feb-2012. When we got the extensions I found that I got H1B extended for 3 years (up to Feb-2015) but my wife and both the children got only up to Nov-2013). When my lawyer check with USCIS he found that this was because my daughter reached the age limit of 21 years in Nov-2013. She can get H4 approval only up to age of 21.

As I-539 application was common for all H4 applicants, they issued same validity for my wife and son, even though they were eligible to get extension up to Feb-2015. I don't know why they can not even give different dates for all three different applicants.

Now my question is, Is there any way we can get validity up to Feb-2015 for my wife and son? Can we reapply for H4? It is very important to do so as otherwise I have to apply and stamp for their (wife+son) H4 visa next year again. We already tried Nunc Pro Tunc petition and result is null.

If anybody experienced the same or heard about this issue, please share.

Appreciate your help in advance.

Thanks

[shervin143]

There is nothing complicated about it and it is not a big deal to freak out. They still have their I-94s valid until Nov 2013. You can file their extension when their I-94 is about to expire (6 months prior to their I-94 expiry date) or when they leave the country, upon their re-entry they will get a new I-94 matching your extended petition at the POE (as they need to show your latest approval notice). You cannot get H4 status to your children who are over 21 years of age.

[jiten1968]

Hi Shervin143,

Thanks for your quick reply. But there is still some confusion. Please explain some of the VISA requirements here.

When I will go for visa stamping to US Embassy, Canada they will get VISA up to NOV-2013.

And then as you mentioned...

You can file their extension when their I-94 is about to expire (6 months prior to their I-94 expiry date) or when they leave the country
- I believe they are not suppose to leave the country when H4 extension is under process, correct me if I'm wrong.

, upon their re-entry they will get a new I-94 matching your extended petition at the POE (as they need to show your latest approval notice).
- Don't they need new I-797 approval notice up to FEB-2015 to get I-94 up to FEB-2015? Also their VISA needs to be updated up to FEB-2015 for future travel and for that we anyway need to go US embassy.

Something just came in my mind, why the VO in US Embassy,Canada can not give them visa up to FEB-2015 based on my H1B approval notice?

Appreciate your reply in advance.

Thanks

[shervin143]

You can file their extension when their I-94 is about to expire (6 months prior to their I-94 expiry date) or when they leave the country
- I believe they are not suppose to leave the country when H4 extension is under process, correct me if I'm wrong.
>>> Read my previous reply again. I said you can either file the extension (If they stay in U.S and no plans to leave the country before their I_94 expiry date) OR if they leave the country, then upon re-enter they will get a new I-94 matching your petition expiry date (No need to file the extension in this case if they leave the country before their I-94 expiry date).

, upon their re-entry they will get a new I-94 matching your extended petition at the POE (as they need to show your latest approval notice).
- Don't they need new I-797 approval notice up to FEB-2015 to get I-94 up to FEB-2015? Also their VISA needs to be updated up to FEB-2015 for future travel and for that we anyway need to go US embassy.
>>> When they initially came to U.S, did they have any H4 approavl notices with them? They entered with a valid H4 visa (applied based on YOUR H1B approval notice) and at the POE they showed your H1B approval notice and got their I-94s, right. That is exactly what they will do everytime. They don't need their H4 approval notices to re-enter U.S. They will need your H1B approval notices and the I-94 issued will be based on your approval notice. They will need a valid H4 visa though. If the current visa is valid at the time of re-entry, then they don't need to go for stamping again. You need to apply for the H4 visa again only if they won't have a valid visa on the date of their arrival.

Something just came in my mind, why the VO in US Embassy,Canada can not give them visa up to FEB-2015 based on my H1B approval notice?
>>> Who said they cannot? Their visas if approved (Assuming their passports are valid for more than 1 year) will get the H4 visa stamped until your H1B approval notice expiry date. But visa is only an entry document to U.S. Visa expiry date doesn't need to match the petition expiry date. To live in U.S I-94 is what is important. As long as they have a valid H4 visa, they will be allowed to re-enter U.S irrespective when it expires and the I-94 will be issued at the POE based on your H1B petition.