Missed to file h4 extension and spent 180+ days in US after i94 expiry

Hello,
I have forgot to apply h4 extension for my wife (i94 expired on Feb-22-2019) and accrued unlawful presence of 8 months due lack of immigration knowledge myself and my employer filed only my H1B extension and did not give information about it. I heard she is already trigger 3 year bar as she crossed more than 180 days. Just came to know about this 2 days back. We had 6 moths old baby (US citizen).

What is the best way to reinstate the status for my wife.

  1. Does she has to go to home country and go for stamping by explaining the circumstances about missed to file
  2. Does NPT works to reinstate the status back, but I heard the this request processing take at-least 5months and it hard to get approve.
  3. What if her H4 extension denied in home country and bar for some X years then what are the next step to get back to US legally

Can you suggest to get out of this situation.

Thanks,
Ricky

Hi @ricky0708

NPT is the way to fix the ‘unlawful presence’ time. If approved, USCIS will fix the time spent in US and will mark it as legal.

The 3 year ban may or may not be revoked. Unfortunately, you cannot claim ignorance as the reason. You are responsible for maintenance of H4 status and not your employer.

If you go out of US and get H4 visa stamp, the time spent in US will always be counted as ‘unlawful presence’.

I suggest to talk to an attorney and then plan your next step carefully. Do not waste time on public forums and connect with an attorney immediately.
Each new day is only adding to your problem.

If her H4 extension is denied, she cannot enter US.

Hi,
We have filed H4 Extension with NPT request, on nov 05 2019 and finger prints were taken on dec 5th, as My Wife i94 expired on feb-22-2019.

  1. So is it better to wait until the decision comes or need to leave the US asap before crossing 365 days of unlawful presence by feb-22-2020 ?.

  2. what if unlawful day crossed one year and NPT denied, what are the options I have after that?

  3. If we have to go for h4 stamping in India what are the documents we have to carry to support our case?

Hi @ricky0708

Did you speak to an attorney? What did they advise you?

Attorney advised not to leave the country and I have taken second opinion from murthi law, they have suggested to leave the country 10 days before reaching feb 22-2020.

so I am confused to make decision as I heard that its taking 4-6 months to get decision out and chances very slim to get decision in my case before feb22-2020. we don’t have that much time 4-6 months, if we cross one year and decision is negative then i will be deep trouble 10 year bar.
So please advice us

Hi @ricky0708

There will be 3 year ban if the NPT is denied and she has stayed in US for more than 180 days.

So, you are still running a risk.

My opinion would be to leave US before 180 days itself.

NPT has 50-50 chance of approval based on what arguments have been made for your case.
Chances of getting a result before Feb 2020 are low.

Rest is upto you. Going out and coming back with H4 visa could have been a better option.

Thanks for your advice.

  1. If she leaves the country, what will happen to existing petition of h4 ext with NPT request?

  2. What are the documents, she has to carry to consulate for stamping apart from regular h4 docs?

Hi @ricky0708

If she leaves US, the NPT may be abandoned.

There are no extra documents required for your specific situation that i can think of, apart from regular H4 visa stamp checklist.

My wife left the US in January and attended for h4 extension visa Stamping yesterday at hyderabad consulate, and Consulate VO approved her visa. He asked only one question. Special thanks to @Anil.Gupta for sharing valuable suggestions and information on immigration issues.

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Hi @ricky0708

Congratulations. I am glad i could help.

Thank you. I have a follow up question.
My wife h4 extn approved with my current employer, valid stamping till aug-2021 and like to stay at home for two more months. During this time, if I transfer my H1 to new employer before she come to US.
Does she has to go for stamping again. what are things i need to take care.

Hi @ricky0708

The H4 visa stamp stays valid irrespective of the H1b employer.

She can use it to enter US by showing your newly approved H1B transfer i797.

surprisingly, My wife NPT request with H4 Extension, which I filed in US before going to India was not abandoned and Approved few days back and I received new i797 approved copy stating dates from 2/22/2019 to 8/22/2021. What does this means to me?

  1. Is my wife unlawful presence days back dated to previously expired i-94 date that is 2/22/2019?
  2. In future while applying for anything Does we have to still mention the those days as unlawful presence days ?
    can you give your pointers on this, how does this approval will help us

Hi @ricky0708

If the NPT was approved with back date, then you are good. Her unlawful presence has been removed.

You do not need to declare it in future applications as long as previous i94 date has been matched.

Hi @ricky0708, I have similar issue now. I missed to attend my kids bio-metric appointment as I did not receive any mail and they denied last week. What is NPT? and how I can apply that? Do I need to contact my employer? Can you please guide me?

Your case is different from my case. I think once the case denied, person will go out of status. I hope it is h4 extension, if i understood right. Contact your employer and a lawyer and take their consultation as soon as possible.

Thank you @ricky0708. Can you please let me know how we can file NPT? Just wanted to know.

Hi Ricky, my spouse is in similar situation. NPT H4 is in progress (applied a month before) and not sure whether she need to leave the country now!

Around the Mar 10, while you received NPT approval, your spouse is in India? With your overall experience, what you suggest?

If you explain whole scenario then I can suggest.

My H1B approved with backdated mar 2020 but received around mid of apr 2020 so went for Npt H1B and H4 - mid of May. Now I received Npt H1b approval Jul 2020 through premium but H4 will take time. Currently 3 months out of status for spouse so if I wait it will take more than 180days! So not sure if we want to wait or my spouse to leave the country.