Can H4 dependent stays 365+ days while H4 NPT in process?

@anil_am22
Hello Anil Sir,
My H1 is valid until Jul 2021 and my wife+1st kid (H4 Visa) I94 expired last year April 2020. Nov 2020 H4 NPT is applied and Biometric is also completed.
My doubts -

  1. If my family goes to India in April 2021 (before 365+ days of I94 expiry) then can they be back in the US with a new H4 visa stamp while the H4 NPT decision is Pending? Or do they have to wait in India until their H4 NPT decision comes. Currently, the USCIS site showing 15+ months for H4 extension approval, does that mean my family has to stay outside the US until they get H4 NPT approval?

  2. My Attorney said that it is fine if my family stays here after 365 but I am confused about what will happen to their Status after July 2021 (until my H1 validity). In March 2021 my current company will apply for my H1 extension, should I apply for another H4 extension while another H4 NPT is in process.

  3. What will happen if the second H4 extension (if applied along with my H1 extension) get denied based on their unlawful presence?

Thanks in Advance.

As per my opinion, your H4 dependents should go out of US and get a new H4 visa stamp.
They can then come back to the US.

That would make things better and you can file a normal H4 extension along with your H1B extension.

The pending H4 NPT does allow you to stay in the US legally but then you have already crossed 180 day mark which is a little risky in case it is denied later.

The better option to get peace of mind would be to go out and get visa stamp. H4 is a safe visa and US embassy should stamp it without any issue. Lot of people have gone through this and have got approvals and then easily returned to the US.

Thank you very much Anil Sir for your reply.
But what happen if my wife returns US with a new H4 stamp then based on what she will be allowed to enter in US at POE? Is it possible she can be deported from US airport because her 3 year ban already been triggered.
One of the online forum was suggesting about 212(d)(3) waiver, Is my wife eligible to have this waiver (any idea)?

Thanks again.

Hi Sandhya,

Do you have any further update on your case?Iam also in similar situation.

Did your message was for me?

I already crossed 365 days of overstay.
So checking what happend in your wife case did she crossed 365 ? NPT approved?

Pls share.