Overstay On H-4 Visa Past I-94 Date

R

rkg12345

Registered Users (C)
This query is for a friend who is employed here on H1-B with wife and kid on H4. Their I-94s and their visas were set to expire on 1/31/03. He applied for H1-B extension in Nov 2002 and recently received the approval papers.

Unfortunately, he had assumed that his approval would automatically extend the status of his dependents and therefore no paperwork was filed for them. Now he knows that his dependents are staying here illegally since 2/1/03.

Since the I-94 of his dependents expired on 1/31/03, please advise the best course of action -- stay in U.S. and apply using I-539 alongwith their expired I-94 OR exit the country and go to the consulate in the home country for stamping thus showing the intention of staying legally in U.S.

Also, does anyone know if his dependents could possibly be subject to the 3-10 entry ban, especially if they apply here and the application is denied after a few months, thus accumulating more time in their illegal stay period?

Thanks for your help!!
 
Act fast...

Right now no real harm has been done. They have not overstayed their I-94s by more than 6 months..so to start with:
1) They need to leave the USA ASAP.
2) They must use your friends H1 approval notice
to get new H4 visas from a consulate outside the USA.
3) Re-enter the USA on the new visas.

Please ask your friend to do this asap..otherwise he will have to regret this big time.
If they try to apply for a H4 extn now..it will only show up clearly on INS records that they had overstayed their I-94s...going out and getting a new visa is the best way to go...
 
tt tt is correct but recently it happened with one of my friend he extended his H1B and employer lawyer or HR forget to file H4 extension of his spouse with his H1B. After 60-65 days he came to know that his spouse H4 and I-94 has been expired. He immediately contacted a lawyer and I-539 was filed for the spouse and it was approved. According to INS/BCIS treats this as an innocent mistake and they can forgive this kind of cases.Lawyer can draft the letter.
You should immediately contact good immigration lawyer and file for I-539 for your dependents or go out and get H4 stamped.
Contact Lawyer.
 
I agree...

it is pretty clear to anyone RESONALBLE that it is an innocent mistake..you know where I am going..now :)

But I agree..it is worth filing for premium processing for H4 and see if it works out really fast..otherwise get out and come back in.
 
hi tt tt,

I have similar issue, My I-94 got expired on feb 27,2003. I applied for my HIB visa revalidation in Jan 2003 to Dept of state ,St.Louis.
Unknowingly I send the I-102 for extending I-94 to Dept of state. They processed the HIB and issued me new HIB visa valid till Jan 2004 and just returned the I-102 form and did not return the $100 money order and no letter also.
Now I am thinking of applying I-102 to BCIS with the proof of my application send to Dept of State. I am just 2 weeks out of status ,but have a reason and proof that I tried to apply earlier when I had valid status but to wrong dept. What is your opnion on this. Can you please write me.

Thanks
 
I dont understand ...

The state department re-validated your visa to Jan 2004..they do that only if they can see that you have submitted an I-797 H1 notice of approval that is valid until Jan 2004.

Let me know what is the LASTEST issued I-94's expiration date ?
Anyway you have got a valid visa...go to canada or mexico for a day ..submit your expired I-94 on the way out of USA to canadian/US official on the mexican border..and on the way back get a new I-94 from the POE with expiration until 2004 Jan ...your H1 visa validity date.
 
“it is worth filing for premium processing for H4 and see if it works out really fast”

Premium processing for H4 is not accepted by INS/BCIS, premium processing is only for H1B not for H4
 
Thank you for your responses, tt tt and ginnu!!

Just one question though -- if he submits the I-539 in U.S. and the INS takes another 3 months to review this case (current date for VSC is 12/18/02) and ends up denying it, would the total time on illegal status then be 3 months+1.5 months(already lapsed since expiry) .. making it closer to the 180 day deadline :(

In that case, I would think exiting U.S. is safer --only that he is not confident of the "generosity" of the consulate in the home country. :(

He is planning to take the decision by Tuesday, so your responses would be highly appreciated!!

Thank you again!
 
3 months+1.5 months ( accoding to your educated guess)

4 months back VSC was taking maximum 30-45 days to approve I-539, no body can predict INS/BCIS
Better you should take the services of good immigration attorney
 
It can be done (although it is getting more difficult sincnce INS (now BCIS) is taking a more stern position on people maintaining their status). It is more complex than just filing a straight extension. The situation needs to be explained to INS, the reason for the error needs to be addressed, and authority needs to be provided to INS. The fact is that the EOS is NOT approvable generally and you are asking INS to exercise its discretion in approving the case. THe officer will need to feel confident in doing so for this to get approved. Three years ago I would have said that there would be no problem but now it is more difficult.
 
Issue sorted out!

Hello everyone,

This is a post regarding the current status of this case.

The concerned choze to stay in U.S. and apply for the extension of dependent visas here itself. The approval papers came in within 45 days and there is no gap between the last I-94 and the new one.

:)
 
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