H4 Expired I-94 but valid I-797

Soumitra Kayal

New Member
  • Wife on H4 travelled to India Oct 2015 with then current I797 (Dec 2012- Dec 2015) and new I797 (Dec 2015-Dec 2018)
  • Wife’s passport at the time of travel had passport expiration date of Sep 2017
  • Wife’s I-94 got stamped with a date of Sep 2017 based on passport expiration date
  • Wife got passport renewed Aug 2017
  • We did not know we had to renew I-94 after passport renewal until now when we had to renew our H visas and is past 10 months from I-94 expiration date
  • Wife on H4 with valid I797 (expiring Dec 2018)
  • We are applying for H1/H4 renewal with Premium Processing
  • Should we take the risk and apply I-539 even though I-94 expired or should we correct I-94 at CBP office (email/person)
  • What are other options as my wife is 7 months pregnant and have an autistic child
 

whitemimauz3

Registered Users (C)
You should have gone to local CBP as soon as you got her passport renewed. I suggest drive down to local CBP office & request to extend I-94. Take some letter from wife gynecologist saying high risk pregnancy, not advisable to travel. Most international airports has CBP office or google closest CBP office.
 

Soumitra Kayal

New Member
Hi,
Thanks for the suggestion. I had a talk with company lawyer this morning and they suggested not to update my wife's H4 I-94 at local CBP as you never know what kind of officer we can run into. Instead company lawyer suggested they file last action rule with NPT as it was a result of prior attorney's mistake not updating my wife's document in time even though he had passport information with travel dates.
I am not sure the success rate with H4 NPT and would really need a second opinion.
 

whitemimauz3

Registered Users (C)
At this time to remedy this problem you either needs to go CBP office or step out of country, have H-4 visa stamp, probably would be scrutinized at US consulate & enter country with H-4 visa. Yes you can file NPT (Now for Then) but keep in mind until your application is adjudicated her fate will be hanging b'coz it is not absolutely assured of positive outcome. It was not your attorney's job to update passport details. He/she got approval, At port of entry, US CBP officers were precluded from issuing I-94 until H-4 approval I-797 validity b'coz of passport expiration.
 

Soumitra Kayal

New Member
- Will H4 I-94 expiration past 180 days (but less than a year) trigger a 3 year bar if she leaves the country ?
- Are their chances that local CBP officer have right to deport (high pregnancy risk) H4 if she goes for correction?

Thanks.
 
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whitemimauz3

Registered Users (C)
I have sympathy with your wife's situation & hope it works it in your favor. But you need to realize the more time you spend & do nothing will prove bad for her case. I don't know whether they will deport. May be try to go through NPT route with your wife's medical condition.
 

nelsona

Registered Users (C)
H4 extension is with I-539, which requires a current status (ie. an I-94 in a valid status that is not expired). The I-539 is likely to be denied on the basis that she had no status in US at the time of filing, furthering your problems.
You need to get in status ASAP.
But, looking back, would not the I-797 issued for her last H4 have had an I-94 attached, valid for the entire period up to Dec 2018? I-94s issued by USCIS are not limited to passport expiry date, like CBP-issued ones. I could argue that this I-94, which would start in December 2105, would be last action, supercedes the I-94 issued in Oct 2015. I-94 trumps passport stamps.
 

Soumitra Kayal

New Member
Thanks. Company Counsel is filing last action rule followed by NPT with premium processing fees along with my H1 renewal next week. Will temporary suspension starting Sep 11, 2018 affect my H1/H4 renewal?
 

nelsona

Registered Users (C)
The suspension of H1 premium processing may affect your petition, if it does the premium fee will be refunded. However you must submit before 9/11/18. In any event, you don't need premium processing, but that is for another thread.

back to the issue:
If she has the valid I-94 from the I-797, why would you need to file anything for last action and NPT? That I-94 would be the current valid one. its as if the one issued in October 2015 was torn up, and the one from the I-797 was inserted -- which is what you should have done anyway. This is exactly how those in TN/TD, F1/F2 , etc switch to H1/H4 when the I-797 is issued in May for a October 1 start date.

The key is if she was issued an I-94 on her H4 approval -- and still has it -- that stated it was valid from Dec 2015 to Dec 2018.
 

whitemimauz3

Registered Users (C)
The suspension of H1 premium processing may affect your petition, if it does the premium fee will be refunded. However you must submit before 9/11/18. In any event, you don't need premium processing, but that is for another thread.

back to the issue:
If she has the valid I-94 from the I-797, why would you need to file anything for last action and NPT? That I-94 would be the current valid one. its as if the one issued in October 2015 was torn up, and the one from the I-797 was inserted -- which is what you should have done anyway. This is exactly how those in TN/TD, F1/F2 , etc switch to H1/H4 when the I-797 is issued in May for a October 1 start date.

The key is if she was issued an I-94 on her H4 approval -- and still has it -- that stated it was valid from Dec 2015 to Dec 2018.

You are missing the point CBP officials are precluded from issuing I-94 at port of entry beyond passport expiration date. Even though h4 approval notice/h4 visa is valid until 2018 but since her passport was valid until Sep 2017 therefore officer issued I-94 until validity of passport, and the officer knowingly did this & she was suppose to go to nearest CBP office upon passport renewal to extend I-94 which she did not do, therefore NPT on medical grounds are only route, there is slim chance they might deny h4 when she goes for renewal, upon which she needs to step of country have h4 visa stamp based on spouse's h1b I-797 approval & re-enter the country. In these circumstances how could I-797 which is valid until Dec 2018 any good if officer knocked off validity period.
 

nelsona

Registered Users (C)
I understand CBP limitations. However, last action, when USCIS issues an I-94 (which does not have the passport expiry restriction) occurs at the moment the I-94 becomes valid.

In this case, the last action would be the I-94 issued by USCIS on the I-797, since it would only be valid from Dec 2015. So regardless of any action that CBP took before that date, the USCIS issued I-94 would take precedence.

Btw, it is not true that a person legally in US, on a valid I-94, has to "step out" of the country to remain legal when the USCIS issues them an I-94 with their approval. The new I-94 takes effect on that date stipulated on the I-797, with no action required by the beneficiary. The "passport stamp" is not really important, it is the I-94 that matters.

Example. Person is on H4, with a valid I94 expiring in Dec 2018, the date of her passport expiry. She applies for H1-B in April 2018 and it is granted for Oct 1, 2018 starting date. Her I-797 has the I-94 attached, indicating validity from 10.1.18 to 9.30.21 (USCIS does not care about passport expiry date). she leave the country in July for holidays, and comes back and enters on H4 status, with new I-94, again issues only until December. She remains in H4. On October 1 she automatically becomes H1-b, and begins work, substituting her recently issued I-94, with her I-94 from her h1-B approval notice, and begins working. This is by the last action principle. And, he never has to leave country to get h1-B, status, as USCIS granted it with an I-94 on Oct 1, 2018.
 

whitemimauz3

Registered Users (C)
The I-94 that was issued to her at port of entry by CBP which is valid until Sep 2017 (the expiration of passport) supersedes previously issued I-94 which was issued by USCIS even though it is valid until 2018. Now according to your theory she is in valid status, do you think if h4 extensions are filed on her behalf she would get an extension & gets new I-94 ? Absolutely not because she lost status effective from Sep 2017 b'coz I-94 is expired, that is the reason her attorney wants to utilize NPT & do you think attorney is filing NPT just like that. I suggest please reread her case again from beginning to understand clearly what is the issue here.
 

nelsona

Registered Users (C)
That is the principle of last action at work. It doesn't matter how many I-94s were issued prior to Dec 2015, because USCIS issued one that BEGAN on Dec 2015 (and is still current, since she never was issued another I-94 after that date). What do you think "last action" means? This is exactly how H1's begin working on Oct 1 of each year without having to leave US, or after they have entered US in another status in the month(s) prior to October. That is why the lawyer (not me) is claiming last action (ie. the last action being USCIS I-94 in Dec 2015), which lead me to question why they would need to do anything special, but file a regular renewal this fall. Perhaps they are covering both last action and medical hardship, just to be safe.

In any event, it is in that lawyers' hands now, I've given my advice, you have given yours.
 

whitemimauz3

Registered Users (C)
You are forgetting the fact the 'last action' has been invalidated & knocked off by USCBP, even though USCIS approved her H-4 until Dec 2018. USCBP choose to give her I-94 until passport validity i.e. Sep 2017. So what is relevance of last action here ?
 

nelsona

Registered Users (C)
I guess you do not quite understand last action. The date of last action, when USCIS issues an I-94, is the date the I-94 becomes effective, not when it was issued. CBP could do nothing to that I-94, because she faced them BEFORE Dec 2015. CBP was admitting her on her previous H4 term, not the one that started in December. It simply didn't matter how long a validity they gave her on that entry, because her I-94 would be acted on in December 2015.

https://www.hooyou.com/news/news051207lastactionrule.html

Good debate. I'll let her lawyers take it from here. Ciao.
 
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whitemimauz3

Registered Users (C)
Oh my god. I am now sure you did not reread her case. I will try to put this again, Her original H-4 was approved from Dec 2012-Dec 2015 & H-4 was extended from Dec 2015-Dec 2018 keep in mind she traveled outside US she had both H-4 approval notices in her hand, BUT when she entered US sometime in 2017, CBP noticed her passport has expiration date of Sep 2017 therefore the officer gave her I-94 until passport expiration date of
Sep 2017. I hope it is clear to you.
 

nelsona

Registered Users (C)
Not correct. She has not left US since October 2015. The CBP issued her an I-94 in October 2015, with a 2017 expiry, because at that moment, in 2015, she had a passport that expired in 2017 . before the start of her new H4 period. Nothing happened in 2017.

I guess that is where you are getting confused. No problem happens to anyone. Glad to clarify. have a good life.
 

whitemimauz3

Registered Users (C)
My friend as I told you earlier multiple times I guess you did not read post properly the post. the very first line says wife TRAVELLED. "Wife on H4 travelled to India Oct 2015 with then current I797 (Dec 2012- Dec 2015) and new I797 (Dec 2015-Dec 2018)"
 

nelsona

Registered Users (C)
So, we agree that she did not travel in 2017, glad to see you are now reading more closely.

Yes,she travelled BEFORE Dec 2015 H4 took effect. It didn't matter that she took the new I-797 with her, it wasn't in effect yet. She still could only enter US on the earlier H4. CBP's I-94 merely kept her in status until Dec 2015, regardless of the date they indicated, then in December 2015, her USCIS-issued I-94 kicked in, by last action.

It really isn't that complicated, is it?
 
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