H1B Amendment approved past dated - Filling DS-160


  1. My previous I-94 expired on Nov 28, 2019. Extension filed in Premium
  2. Received new I-94 till April 28, 2021 through premium processing , last Nov 2018.
  3. At the same time, a H1-B Amendment was filed on Regular processing quoting the
    Extension receipt of #2 is pending . But USCIS approved it , on Oct 8 , 2019 but
    until I- 94 in #1 backdated till Nov 28, 2019
  4. Attorney filed filed Nunc Pro Tunc on Nov 27, 2019, which got approved with I797 B Consulate notification confirming validity till April 2021, but without I-94

Now, I have to go for stamping and re-enter USA, which I have booked Visa date on Jan 14 to appear in India. My employer has taken me from Pay roll since Jan 2, 2020 after the notice is received.

I am confused on how to calculate the unlawful presence days and how to justify the same, when asked (both in interview and while filling DS-160 form )

Any help, would be appreciated .

P.S. I am yet to talk with the attorney, but they are not sure, I believe


I do not understand your question.

If NPT was approved, then there must be a date which was requested and your attorney should be able to tell you.

If NPT was approved, there should be no unlawful presence.

NPT request was denied but petition approved with I797B consulate notified


Earlier you said NPT was approved!

Anyways, the time spent after your most recent i94 expiry will be counted as out of status time.

Thanks Anil. Won’t the decision date which is Oct 8, 2019 be considered - only after which the unlawful presence be calculated.? Because until then I had another valid I-94…


Hi @Sathish_Kumar_Sellam

It depends on the sequence of events.

If NPT was not approved, then the most recent i94 is what i would suggest to use here.

Hi Anil,

What happens to the status of H4 dependent on the above scenario ? My wife got a separate H4 extension until Apr 2021 during first extension and they are not part of H1B Amendment or NPT request ? What is her status now ? Since, I had a newborn, at present both of them cannot travel, so I have left US for consulate stamping…

You need to understand that H4 status is always dependent on H1B.

If H1B goes out of status, which you have, H4 automatically goes out of status too.

Did you speak to your attorney before leaving your H4 dependents in US?

Yes. I have informed them, they told it’s better to leave as soon as possible. Thanks