H4 extension filed along with H1 extension but dependent passport expiring in 3 months

H4 Visa
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1

My H1B extension was filed in the end of June. H4 extension was also filed along with the H1B request for my son and wife.

My son’s passport is expiring on October 24th, 2018.

As the processing of visa is taking around 3-4 months to complete, the visa will be provided only till October 24th, 2018 as it is the passport expiry date and if the application processing starts after October 24th, 2018, the H4 for my son might be rejected.

I have not yet applied for my son’s passport renewal as the above situation slipped completely out of my mind. Will apply that ASAP and get the renewed passport.

Can you please suggest what are the options to come out of this situation?

2

Well, since you have already applied, you can;t really do much now.

Chances of RFE for submitting RENEWED Passport are high

Most probably, you will receive the RFE for your son’s H4 extension if the passport expires by the time USCIS works on it.
If you are lucky, USCIS may just approve it without RFE.

H4 visa validity is NOT tied to passport validity, but i94 expiry is

Normally, the H4 extension date is NOT tied to passport expiry. It is given for full 3 years.
Only i94 is affected by passport expiry date and in your case, if the extension is approved without new passport, the chances are very high that i94 would be restricted to Oct 24, 2018.

In this case, you will have to either again file H4 extension with NEW passport or go out of US and re-enter to get new i94:
https://www.am22tech.com/i94-correction-after-passport-expiry-and-renewal-in-us/

Ideally, you should have got the passport renewed and then should have applied for H4 extension.

Renew passport now to save time on RFE (is it is issued)

Anyways, I would suggest to apply for passport renewal and keep it ready in case you receive an RFE.

Assuming you are from India, you may want to go through this step by step process for Indian Minor passport renewal:
https://www.am22tech.com/renew-indian-minor-passport-in-usa/

3

Thank you very much for the information. However I have a couple of follow up questions.

If I receive an RFE after the passport expiry date, how much time will I have to complete the approval process with new passport? And should the dependent leave US and come back after the H4 is approved or can he stay till the RFE is processed and H4 is approved? I mean, will it be considered as unlawful presence?

If I get the approval around the passport expiry date, how much time will I have to get the I94 updated? Is it only till the passport expiry date?

4

Time to complete USCIS RFE

USCIS gives you 60 days to respond to RFE and submit the documents that they have requested.

Time to renew passport after your receive USCIS RFE for expired passport

I would strongly suggest to get your passport renewed NOW rather than wait for USCIS RFE.
Passport renewal takes about 1 month.

i94 expiry date is same as passport expiry date

The i94 expiry is matched to the passport expiry date if passport is expiring earlier than Visa validity date.
So, you effectively will have very limited time if USCIS does indeed approve H4 extension without the new passport.

5

I will definitely renew the passport immediately. Just want to know when the RFE is in process, will it be considered as unlawful presence?

If I receive the H4 approval very near to the passport expiry date say 3 days, I will have to apply for H4 extension or visit SENTRI/CBP office to get the I94 updated. What happens if I do any of the above after the I94 expiry date? Will it be considered as unlawful presence and should face any issues?

6

Unlawful presence when RFE is in process

Officially, anyone who has filed for extension before i94 expiry can legally stay in US for up-to 240 days after i94 expiry to wait for extension result, including RFE days.

For H4 dependents, this 240 day is usually ignored and they can stay for as long as the extension process takes.
BUT, this is NOT documented anywhere by USCIS officially.

So, it is up-to an individual to stay beyond 240 days or not.
See this similar case where H4 dependent minor son’s extension was delayed:
https://www.truvisa.com/t/does-240-day-rule-apply-to-minors-h4-extension-too-i94-expired-and-uscis-decision-pending/221

Unlawful Presence after i94 expiry

In legal terms, yes, your stay in US after 240 days of i94 expiry AND if the extension decision is still pending, can be counted as ‘Unlawfully present’ in US.

With so many USCIS rules changing these days due to political pressure, i would strongly suggest to not take that risk of staying beyond 240 days at all.

In a perfect normal world, USCIS would not care about H4 dependent’s unlawful presence till the time H1B’s visa was valid.
But, it is not a normal world today.

H4 extension approved with i94 expiring in 3 days or small expiry

You cannot wait.
i94 expiry when none of your extension is PENDING (You said if H4 is approved by USCIS with very less time left), is definitely an ‘Unlawful presence’.

Don’t worry, most probably, USCIS will not create this scenario and they will issue an RFE to get details of your son’s new passport.

But, if it does happen, you will have to get i94 renewed ON or before it expires.

Does that answer your question?

7

Yes Anil. Thank you very much for the detailed information. Really appreciate it.

8

My H1 got approved and both my dependents H4 was approved till the same date as mine. They did not ask for new passport for my kid.

9

Great. Congratulations for the approvals and thanks for sharing the news.

Make sure you check the i94 expiry date attached to the H4 approval i797 and see if it is long enough or it has been matched with passport expiry.

10

Hi Anil,

As I understood from this thread that H4 transfer is not required with H1B transfer.

Here is my situation, I got an offer from Employer B and they are ready to file H1B transfer in premium. My current H1B and H4 visa are valid till Feb 21.

My spouse passport is going to expire in March 21. If I applied for H4 and H4EAD transfer along with H1B transfer then My spouse will get I-94 and H4 petition approval only till passport expiry date ? is my understanding correct ?

should I apply for passport renewal first for my spouse and once my H1B petition is approved then i apply for H4 and H4EAD extension based on new passport and my approved H1B petition ?

is it the right approach ? Please provide your suggestion and thank a lot.

11

Hi Sasank, I am in same situation like you. Did you get your son I-94 extension until your son passport expiry or beyond that?

12

Hi can uguide how to send copy of new passport…which address.and will informing them by email save from rfe…sons passport expired…539 pending since 9.5 months…they might be working on it in next couple weeks…dont want denial or RFE…his passport expired 07/29…have applied in Tatkal hope to receive next week