H4 Extension and Overstay question

[p_21]

Hi,

Please see below information and dates for my wife's H4.

1) Her I-94 was valid till 15 dec 2011

2) She left US and went to home country on - 5th Jan 2012

3) I have file my h1 extension - I129 on 1st Oct 2011 and also asked lawyer to file I539 for H4 extension.

4) I realized latter that my lawyer has not file i-539 till 15th January 2012, the date is after my wife left USA.

5) I got I-797 (approved) for me and my wife on 9 march 2012 with new I-94 for both of us till 06/01/2012. In which my I129 - petition receipt date is marked as 1st Oct 2011 and for my wife the I-539 petition reciipt date marked as 15th January 2012.

I have below questions,

1) Currently my wife is in India and she is planning to for H4 visa extension - stamping. Should we worry about the overstay of 21 days after I-94 expiration as her I-539 was submitted by lawyer after her I-94 expired and will she have to explain reason in consulate while stamping. Also please not fact that her I-539 got approved and received new i-94 till 6/102012 after she went to India.

2) As her i-539 got approved and she receive approved I797 with new i-94 (however she left to India before approved I-797), Is she okay or would the overstay will have any implications?

3) Is there any other concern or problem that she may face while going for stamping?

Please provide your opinion or suggestion/advise.

Thanks,
P

[shervin143]

1) Currently my wife is in India and she is planning to for H4 visa extension - stamping. Should we worry about the overstay of 21 days after I-94 expiration as her I-539 was submitted by lawyer after her I-94 expired and will she have to explain reason in consulate while stamping. Also please not fact that her I-539 got approved and received new i-94 till 6/102012 after she went to India.
>>> There was no use in filing the H4 extension when she has already left U.S. I don't know hwo USCIS approved the extension when she was out of U.S. That was simply waste of money. The overstaying may or may not cause issues based on how detail the VO checks her immigration records. But since the overstay period is less, then might be okay.

2) As her i-539 got approved and she receive approved I797 with new i-94 (however she left to India before approved I-797), Is she okay or would the overstay will have any implications?
>>> The extension doesn't mean anything as it was filed after she left U.S. There is always going to be a gap of 21 days between her I-94s and it can be an issues if a VO or an officer at USCIS digs deep and looks at all the I-94s.

3) Is there any other concern or problem that she may face while going for stamping?
>>> I don't think it will a problme for stamping. I think the VO may overlook this overstay. But overstaying will lead to unnecessary issues with future immigration and so be proactive and try to kleep your immigration reciords clean.

[p_21]

Thanks for advise.

1) Currently my wife is in India and she is planning to for H4 visa extension - stamping. Should we worry about the overstay of 21 days after I-94 expiration as her I-539 was submitted by lawyer after her I-94 expired and will she have to explain reason in consulate while stamping. Also please not fact that her I-539 got approved and received new i-94 till 6/102012 after she went to India.
>>> There was no use in filing the H4 extension when she has already left U.S. I don't know hwo USCIS approved the extension when she was out of U.S. That was simply waste of money. The overstaying may or may not cause issues based on how detail the VO checks her immigration records. But since the overstay period is less, then might be okay.

P_21>>> As she is in India, She is going for H1 stamping. Does she need to keep any documentation explaining gap or delay in filing I-539?

2) As her i-539 got approved and she receive approved I797 with new i-94 (however she left to India before approved I-797), Is she okay or would the overstay will have any implications?
>>> The extension doesn't mean anything as it was filed after she left U.S. There is always going to be a gap of 21 days between her I-94s and it can be an issues if a VO or an officer at USCIS digs deep and looks at all the I-94s.

P_21>>>> Got you.

3) Is there any other concern or problem that she may face while going for stamping?
>>> I don't think it will a problme for stamping. I think the VO may overlook this overstay. But overstaying will lead to unnecessary issues with future immigration and so be proactive and try to kleep your immigration reciords clean.

P_21>>> What kind of issue with future immigration? I have filed my labor and my perm is in progress...Is there any way to mitigate this future immigration risk?


Any one else has faced such issue and navigated through safely. Please let me know any steps that I can take to mitigate this situation.

Thanks,
P_21

[shervin143]

As she is in India, She is going for H1 stamping. Does she need to keep any documentation explaining gap or delay in filing I-539?
>>> Not required. If questioned, she can explain it to the VO. Let her carry her extended H4 petition (althought it might not be asked during the visa interview). You will need to return the I-94 that came with the approval notice back to CBP since she is not suppose to have any I-94 with her when she is out of U.S.
https://www.immihelp.com/returning-u...4-form-to-cbp/

What kind of issue with future immigration? I have filed my labor and my perm is in progress...Is there any way to mitigate this future immigration risk?
>>> There is nothing much you can do now. The PERM by your employer for you and not for your dependents. So there will not be any impact for now. But later when you file I-485, there can be questions about the illegal stay if the officers looks deep into all your wife's records. But since the GC is filed for your and your dependents are added to it, the risk I guess will be less.

[p_21]

Thanks for your response.

I have one more question. While filing DS-160 h4 visa form.

There is question,

Have you ever been unlawfully present, overstayed the amount of time granted by an immigration official or otherwise violated the terms of a U.S. visa?

What to write there?

[shervin143]

Whatever is the truth. Since she overstayed, answer YES and provide the reason for overstaying. If possible get a letter from the attorney explaining why the extension was not filed on time.

Thanks for your response.

I have one more question. While filing DS-160 h4 visa form.

There is question,

Have you ever been unlawfully present, overstayed the amount of time granted by an immigration official or otherwise violated the terms of a U.S. visa?

What to write there?