My wife and daughter stayed on H4 dependent visa stayed more than 365 days, incident happened when I moved from my first employer to the latest one, at that time I was new in the USA on H1B and my dependents have visa stamped with my old employer’s I797 where the end date was different then what I got post transfer.
During my transfer my dependents were in India and the new employer told even they would not done anything during my h1b was transferred as they were not here (in the USA), now in 2025 my H1B extension starting from Jan 2026 is done and while I chased them for my dependents extension they told as their visa is expired in 2023 you would have done H4 extension after the same time frame we won’t be able to help you now I need to take help of an attorney to get this sorted.
I have spoken to 3 different attorney with below comments-
1- As the current wait time for filing late H4 extension in around 6-8 months so till the time we do not get any response their status will be as unlawful presence.
2- It is better to travel to your homeland as if they file NPT USCIS may inform the local police and may cause deportation
After hearing above comments I booked their tickets and let them travel to homeland Kindly suggest what should do to make sure their visa stamping will be done or chances of their stamping becomes high.
I read different articles which say fill for I539 or NIV waiver form, do not know how to apply and will that have any impact if I apply for them from here while they are in homeland.
Forget to mention during this tenure, we are expecting a baby plus post that we have to stay to complete Passport and OCI(visa) process to travel with my new one
Some questions I am still concern about or worried
How long should I wait for them to apply for fresh visa?
Will there be an extra questions to be asked about overstay or that will be limit as her first entry was legal and through H4?
Do DS 160 ask specifically about overstay, what I remember they ask about human trafficking, illegal funding or some type terrorist activities etc. and will this popped up when interviewer get their application over their system?
This is one of those situations where the timelines and the overstay length matter a lot, so whatever you do next should go through an actual immigration attorney, not random advice online. Once someone crosses 180+ days of unlawful presence, consular processing gets riskier, and after 365 days it gets even more complicated because of the 10-year bar rules. That’s why the lawyers you spoke with told you traveling home was the safer move instead of filing anything NPT inside the US.
Since they’re already back in your home country, the usual path is consular processing with the H4 visa. The problem is that approval isn’t guaranteed when there’s an extended overstay involved, even if it happened for reasons outside their control. The officer will review your whole timeline, why the overstay happened, whether it was tied to employer transfer timing, and whether there was any intent to violate status.
If you’re considering I-539 or an NIV waiver, you really need an attorney to help prepare the explanation packet. Consulates look very closely at these cases, and a well prepared file makes a big difference. Doing it yourself from the US while they’re abroad is possible, but only if the lawyer says it won’t make things worse.