H4 VISA is stamped till Jan 2022 - Travel outside US (Mexico) to get new i94 valid for three years

Hi @anil_am22,

Thank you for your time to answer question on this forum.

I am currently in USA with valid H4 stamping till Jan 2022 (i94 is also valid till Jan 2022) and my spouse H1B extension will be applied hopefully by end of July and already has i140 approved.

I have few questions:

  • Do you recommend applying for H4 extension and H4 EAD (this is first time I will apply for H4 EAD) along with my spouse H1B premium processing? Any hopes or recent experience where H4 and h4 EAD are also approved in premium along with H1B.
  • Let’s say my spouse H1B is approved by end of August with new i797 dates for three years and I do not apply for H4 and H4 EAD along with H1B. Can I travel outside US (Mexico) and reenter US with my spouse recent i797 so that i94 is issued for three years? As I have already valid H4 visa stamp till Jan 2022 so I should be fine to enter US without going for consular appointment. My plan is to apply for H4 EAD once I reenter US - Do you think I can get H4 EAD for three years based on this route?
  • My passport is valid for 1.5 years and wondering how the i94 as well as H4 EAD validity would be issued? (till the passport is valid or till i797 validity)

Appreciate your input.

Yes, this is recommended. H4/EAD is not getting processed in premium with H1B like it happened to in past.

For extension of your H4 status you will need to file EOS/I-539. CBP will only extend your I-94 arrival/departure record to match your I797 in case your passport is expiring before your I797 expiry
and they had issued I-94 to match the expiry of your passport (instead of your I797) when you last entered the US.

Officer at POE will issue I-94 to match the expiry date of your I-797 or your passport whichever is the earliest expiring. If your passport is expiring before your I797, your I-94 will be issued till your passport expiry. After you renew your passport, you can visit CBP and get your I-94 extended to match your I797.
H4 EAD in most cases is issued to match your I797 which normally will coincide with your primary H1B.

Thank you @Kalpesh_Dalwadi for your reply.

I would still like to get clarity for my second question: As I have already valid H4 visa stamp till Jan 2022 so I should be fine to enter US without going for consular appointment. My plan is to apply for H4 EAD once I reenter US - Do you think I can get H4 EAD for three years based on this route?

You can enter back with a valid H4 visa and I-797 however you have to be mindful about the timelines. Assuming you apply for H4/EAD along with your spouse H1B, you may not travel out of the US while your H4 EOS application is pending otherwise it is deemed as abandoned and will ideally be denied by the USCIS.
If you travel before applying for H4/EAD EOS, when you enter back the POE officer will issue I-94 only till your I-797 is valid i.e. Jan 2022.
Assuming you enter say 60 days before the expiry of your I-797 (Jan 2022) and immediately file for H4/EAD EOS upon return, per USCIS rule, you can stay 240 day after your I-94 expiry provided the EOS is filed before your I-94 expires.

Your H4/EAD can be renewed to match the primary H1B expiry date.

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Thanks again for your reply - appreciate it.

Let me clarify - Lets assume primary H1B is renewed for three years from Aug 2021 - Sep 2024 and I did not apply concurrent H4 and H4 EAD along with primary H1B extension.

I travel to Mexico with H4 stamped till Jan 2022 and take primary i797 valid till Sep 2024, so at POE my i94 will be updated till Sep 2024.

I would like to confirm if I apply for H4 EAD after reentering US - would EAD be issued based on this new I797 (primary H1B) for three years till Sep 2024 or as I only have H4 stamped till Jan 2022 so EAD will be only be issued till Jan 2022.

No. This doesn’t work that way :slight_smile: Your I-94 is based on your I-797 and not your primary. If it was to happen the way you think it would defeat the whole purpose of filing extension of stay I-539 application, right?

In your case you will need to apply for EOS for H4 and H4 EAD. Your EAD expiry will match the expiry of your renewed H4 & primary H1B which ideally will be the same i.e. Sep 2024.

No. This doesn’t work that way :slight_smile: Your I-94 is based on your I-797 and not your primary. If it was to happen the way you think it would defeat the whole purpose of filing extension of stay I-539 application, right?

I went to India in April for H4 stamping as I changed my VISA status from H1B to H4. Change of status in US is taking long so I took tis route and do not have any I-797 for H4.

So to conclude you have two ways to extend your H4 VISA and apply for EAD:

  • travel outside US and get stamping done and apply for H4EAD once back in US.
  • File H4 extension in US along with EAD (based on your need for work authorization)

EAD will only be issued based on H4 VISA validity i.e. Jan 2022 and even if you travel outside and get i94 till Sep 2024 - unless H4 VISA is extended, you cannot get EAD till Sep 2024.

I hope I understand this correctly - thanks @Kalpesh_Dalwadi