Non-Immigration H4 over stay.

I

india1972

Registered Users (C)
Experts give some ideas.

I have a family friend, He got H1B for 2.5 years initially. His wife got the H4 visa for same period and after 2.5 years My friend changed job and applied for new H1B and forgot(or i say Don't know) to apply for H4. He applied new H1B 1 year back.
Technically his wife out of status from last 13 months approx.

What he is doing??

He recently started applying I140 and I485. Sent documents to the lawyer. His labour was cleared. This attorney informed him about out of status H4 stay.

She wants to go INDIA and see her parents because she is away from home last 3.5 years??

Attorney is saying not to visit INDIA..While returning POE people may not allow..And also saying even after getting GC also she will get problems at POE.

Lot of questions he has:
1> Is there any body came across this kind of scenario.
2> Is POE will create problem while comming back.
3> Do you guys think it is better to wait up to GC approval.
4> What are the chances her GC application will be accepted by BCIS?

Thanks in advance.
 
Originally posted by india1972
1> Is there any body came across this kind of scenario.
2> Is POE will create problem while comming back.
3> Do you guys think it is better to wait up to GC approval.
4> What are the chances her GC application will be accepted by BCIS? Thanks in advance.
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The burning question is not how long her visa was for. Here is the question that is most important: Has her I-94 expired? How long ago did it expire?

If it expired more than 180 days ago, then she is subject to the re-entry bars. If it's been expired for more than a year, she is subject to the 10-year re-entry bar. If this is the case, SHE SHOULD NOT LEAVE THE UNITED STATES UNDER ANY CIRCUMSTANCES. Unless you don't want to see your wife in the US until 2013.

Are you covered under 245i? What is your priority date?
 
pingpong..

I beleive he never revalidated his new transferred H1.
While applying H1 transfer attorney never asked about his family. So he thought they will be fine.
Thanks for quick reply.
 
Canadian.

Yes..Her I-94 was also expired 12+ months ago. I beleive the I94 date is same as the duration of the H4.
I beleive they are not applied for I140 and I485. They are in the process of applying for that. May be in this month they do that.
About 245i..
if the applicant is below 180 days over stay then he needs to pay $1000.
Is this clause will cover 12+ months over stay scenario.
Please Clarify. Thanks Canadian.
 
Re: Canadian.

Originally posted by india1972
Yes..Her I-94 was also expired 12+ months ago. I beleive the I94 date is same as the duration of the H4.
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OK, then she is definitely covered under the 10-year re-entry bar. She cannot leave the US until she has an I-551 stamp in her passport, or she cannot come back for 10 years.

About 245i.. if the applicant is below 180 days over stay then he needs to pay $1000. Is this clause will cover 12+ months over stay scenario.
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245i will cover such a scenario - but the question is, is your friend's wife eligible? If his priority date is after April 30th, 2001 - there's no chance.
 
RealCandian.

Thanks for yours view.
My friend says his labour approved before the April 30,2001.
Can you tell me the PD assigned at the stage of Labour or I140??
 
Re: RealCandian.

Originally posted by india1972
My friend says his labour approved before the April 30,2001. Can you tell me the PD assigned at the stage of Labour or I140??
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The PD is the date that the LC was FILED, not approved.

You honestly mean to tell me this guy has had an approved LC for 2+ years and never filed the I-140? Hard to believe.
 
I think everybody got this wrong

There is no seperate process for H-4. If your friends H-1 was approved all dependants are approved automatically and you can use the same H-1 approval notice to get H-4 stamp.
Know this from personal experience not once but twice. My family never applied for h-4 and have been in status. BCIS considers H-4 to be a derivative/dependent category i.e. you cannot have a H-4 unless there is valid H-1. So they say as long H-1 is valid you are fine.
 
Canadian..

Yes he did filed the LC with one client on 16th April 2001 and approved 5th August 2001. Left the company.
Now he is trying to file another LC with the new company and attorney found he has approved labor. So attorney is going to use that labor.

This is true. I beleive god gave his family another chance to be in status.

nkm-oct23:

I think now he knows. He will be future asset of this site.
 
Gambler..

I beleive there is a separate process for H4.

In fact i never applied for my family H4. We are staying here from Jan 1998. That all depends on how your dependents travel outside the US.

Let us say i have 3 years H1B and i brought my wife with 3 years H4 stamp. After 3 years my company is going to extend my H1B to another 3 years. Let us say i approved for another 3 years. You mean i don't need to apply for My wife H4 for next 3 years??
That is not true.
 
Re: I think everybody got this wrong

Originally posted by gambler
There is no seperate process for H-4. If your friends H-1 was approved all dependants are approved automatically and you can use the same H-1 approval notice to get H-4 stamp.
Know this from personal experience not once but twice. My family never applied for h-4 and have been in status. BCIS considers H-4 to be a derivative/dependent category i.e. you cannot have a H-4 unless there is valid H-1. So they say as long H-1 is valid you are fine.
Click to expand...

My understanding is to get an H4 visa you just need H1 approval. However once you enter US on H4 visa, you are admitted under H4 status until the date recorded on I-94. If that status expires, you go out of status. There is no automatic status extension for H4 when H1 status is extended.
If H1 changes jobs, H4 need not apply for change of status since H4 status is valid as long as a) I-94 has not expired and b) principal's H1 is valid.
 
H4 needs extension

H4 needs to be extended when H1 is extended by filing I-536. But, if the person travels out side of the country when H1 extension was due & prior to expiry of I-94 and plan to return back after H1 approval, the H4 can be extended at the consulate in the home country. But if the person never travelled out of the country as in this case, you need to extend the H4. This can be done along with H1 or separately by filing the above mentioned application. Failing to file I-536 in time, would cause overstays.
 
india1972

Yes that is correct. I am on my 4th H-1 now due to company transfers and never had a problem here or at the consulte.
I used only the H-1 approval notice to get the VISA stamped for my dependants.
I cannot find the exact link now since I am out of H-1 :) but this is from the FAQ from Immigration.com
Q72 I am in the process of changing job. Right now my visa status is H1B. My spouse is on H4 visa. She recently accepted a job and applied for H1B visa. So my question is when I apply for my new H1B visa do I need to apply a H4 visa for my wife?
A72 No. She will have her own H-1. As long as you maintain status (does not matter with which employer), her H-4 is valid. The moment her H-1 is approved, she will then have independent H-1 status.
 
nkm-oct23

In my friends wife case Her I-94 expired along with H4 on the same date.Thanks for yours good explanation.
 
Originally posted by india1972
Thanks for yours view.
My friend says his labour approved before the April 30,2001.
Can you tell me the PD assigned at the stage of Labour or I140??
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Labor approved before April 30,2001???????? And 140/485 not applied??????????
 
GCSeekerInd

Yes SIR..

I beleive many people on this forum have multiple labors...Due to Employers or job. They may have discontinued GC process and started new LC with another employer once they settle down with good job.

I did applied labor in 1999 and approved in Nov1999 and left that employer in DEC1999. Started Labor with another company in April 2001.
 
But, if he is not going to use the old labor (1st approved labor) to file I140/I485, then I don't think he can keep the old priority date.
 
Originally posted by gcflight#485
But, if he is not going to use the old labor (1st approved labor) to file I140/I485, then I don't think he can keep the old priority date.
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No. You can keep the PD from a previous GC attempt if the I-140 was approved. However, based on the post before yours it appears that his second LC was filed in April 2001, making him eligible for 245i.

Make sure you can prove the physical presenve on 12/20/2000! Other than that all is good, make sure the wife doesn't leave the US.
 
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