H4 visa approved - unlawful presence close to 1 year - Can I travel?

Hi @ricky0708

My husband had applied COS from h1 to h4 but with npt since his i94 was expired. Due to the processing time delays, he stayed close to 1 year due to covid impact on his h1 job and left the US before 3 days.

He completes 1 year as suggested by an attorney and also no updates on our case. We decided to go to stamping in India, attorney suggested taking INA 212 waiver to waive the 3-year ban as he stayed more than 6 months.

US consulate officer who interviewed in India approved visa and also told that INA 212 waiver is not required for h1 and h4 and also unlawful presence will be cleared since it is COS and have informed my attorney the same.

Now, my attorney is suggesting to consulate for clarification/action because he think we need that waiver annotation on the visa. Could you please suggest do we need to the consulate? because they only approved visa knowing the fact about ULP and also we took waiver too…have anyone came across similar scenario ?
Note : reason for staying ULP I was preganant and had new born baby recently in nov - 2020.

Your attorney is right. US embassy usually requires the waiver and adds an annotation on the visa to make sure that you do not face any problems at port of entry.

But, in your case, looks like visa officer has already approved the visa.

The visa officer would have also noted his comments on your case and you can send an email to US embassy and get clarification.

If they are okay with not adding any annotation, then you should be okay to travel.

Since consulate officer told I’d does not impact h1/h4 and waiver is not needed for these visas though we gave the letter that our attorney gave ,my spouse has made the plans to come back usa as there is emergency that I have new born and no one to take care…so he is travelling back to USA and if anything comes up we will take care of of it from here in USA…as we have no choice…hope this works out for us…

Also, as per attorney contacting consulate and getting clarification takes months…

Sure. Let us know how it goes.

Just an update, my spouse came back US with no issues . Customs has asked only one question what is role of h1 petition holder.

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