H4 inadvertently out-of-status issue

[vix]

I applied for my H1-B extension last year, which was approved till
2006. However, I did not file an H4-extension application (I-539) for
my wife, out of sheer ignorance (Neither my employer nor my lawyer
informed me of this requirement).

We recently discovered that my wife has been out of status since
Nov'04 for nearly 4 months. She is planning to leave for India in
early April (l45 days since her I-94 expired).

She will apply for a new H4 visa at the U.S. consulate in June.
However, she needs to declare the following in Sec.38 of the DS-156
application form : "Have you ever violated the terms of a U.S. visa,
or been unlawfully present in, or deported from, the United States?"

1. Given that she needs to answer YES, how likely is this to be a problem
getting the visa?

2. Given the above situation, what would be her best stand/defense
during the visa interview?

3. Finally, assuming that she does obtain the visa, could she run into
any problems while being issued the new I-94 at the PoE on her way
back to the U.S.?

Thanks a lot,
Vikram

 

[ginnu]

I applied for my H1-B extension last year, which was approved till
2006. However, I did not file an H4-extension application (I-539) for
my wife, out of sheer ignorance
(Neither my employer nor my lawyer
informed me of this requirement).
---it is your duty to know it
We recently discovered that my wife has been out of status since
Nov'04 for nearly 4 months. She is planning to leave for India in
early April (l45 days since her I-94 expired).

She will apply for a new H4 visa at the U.S. consulate in June.
However, she needs to declare the following in Sec.38 of the DS-156
application form : "Have you ever violated the terms of a U.S. visa,
or been unlawfully present in, or deported from, the United States?"

1. Given that she needs to answer YES, how likely is this to be a problem
getting the visa?
---depends on consulate officer
2. Given the above situation, what would be her best stand/defense
during the visa interview?
------- take a letter from your lawyer and discuss with him
3. Finally, assuming that she does obtain the visa, could she run into
any problems while being issued the new I-94 at the PoE on her way
back to the U.S.?
------ If she gets H4 visa stamp then I dont see any problems at POE

*** as she has to give the expired I-94 at Airline counter when she departs US better make a copy of her I-94(both sides) and keep it for records, she should also keep the Airline ticket copy, boarding pass with her so that in future she can show that she departed US on particular date and did not hit illegal stay of more than 180 days
Thanks a lot,
Vikram