Originally published at: Missed to file H4 extension, Spent 180+ days in US after i94 expiry [What to do?] - USA
It happens and is pretty common to forget to renew H4 status within the US. The immigration system here is so complex that unless you are half attorney, you will make mistakes on the way.
It is not a mistake but a design.
- Your physical entry into the US is governed by a visa stamp in your Passport or Advance Parole document.
- Your stay length in the US is governed by i94.
- The i94 validity is governed by your passport expiry.
- Your passport expiry is governed by your country’s passport validity rules!
Coming to the topic and giving you options if you forgot to file an H4 extension with USCIS before the H4 i94 expired.
There are a couple of them.
Option 1: File H4 Extension with NPT with USCIS
The quickest option without leaving the USA physically is to file a Nunc Pro Tunc (NPT) application with USCIS.
This is nothing but filing the regular H4 extension using form i539 and requesting the extension from the past date. This past date is the date of the i94 expiry.
In most cases of H4, if the primary H1B has maintained the H4 status and the H4 extension was missed unintentionally, USCIS regularly approves the H4 extension with NPT.
Once approved, they issue an I94 from the past date to make the gap period legal.
Does NPT help to reinstate the status back? I heard that this request processing takes at least 5+ months and it is hard to get approval.
NPT does help and restores the H4 status from the back date. This is very important.
It does take time and USCIS processing times are usually long. But, that’s the only option if you want to request an extension from the past date.
The NPT approval is sometimes hard and varies on your story about ‘why you missed filing H4 extension on time’. Generally, the success rate is high with H4 NPT extensions.
How to make an NPT filing decision?
We are sharing this as a suggestion based on real-life instances that our users on the forum have shared and had success with NPT.
| H4 I94 expired | File NPT? | Chance of Approval |
|---|---|---|
| 1-90 days ago | Yes | 90% |
| 90-180 days ago | Yes | 50% |
| 180+ days ago | No | 20% |
In all cases, we suggest to leave the US and apply H4 visa stamp in your passport if your stay has exceeded 180 days. This is a successful case of H4 visa stamping at Hyderabad, India after spending 180+ days in the US, filing NPT, and then leaving to be on the safe side.
NOTE:
This is not a rule and there is no official guidance from government agencies about filing when to file NPT.
You should talk to your attorney first and then make a judgment based on your circumstances.
The 180-day mark is important as there can be a 3-year entry ban that can be imposed on you if you have stayed in the US without status for 180+ days.
USA Entry ban criteria
- 3 years: If the person spent more than 180 continuous days (approximately six months) in the U.S. unlawfully and then left voluntarily before removal proceedings begin
- 10 years: If the person spent more than 365 days (one continuous year) in the U.S. unlawfully and then left for whatever reason, or was ordered removed from the U.S
This means that it is better to leave even if the NPT application is pending result and was filed before 180 days were completed. This helps to stay on the safe side as the USCIS result is unknown and you do not know how much more time USCIS will take to process your NPT application.
Option 2: Leave the US, File H4 Visa with US Embassy
The other option is to leave the US and file an H4 visa stamp application using your spouse’s H1B i797 petition with the US embassy.
You can visit your home country, Mexico, Canada, or any other country to get this H4 visa stamp.
You will need an explanation of your situation as to why you did not file an extension time along with the regular documents for the H4 visa stamp.
On the DS-160 form, you will have to say yes to the question and then explain your situation.
“Have you ever been unlawfully present, overstayed the amount of time granted by an immigration official, or otherwise violated the terms of a U.S. visa?”
You should answer ‘YES’.
How to explain?
The most common answer to H4 not being filed timely is “We did not know that an H4 extension is required“. This is the WRONG answer as negligence of US immigration laws is not allowed.
We suggest writing any one of the following based on your situation:
- The employer usually files the H4 extension along with H1B and this time, they did not sponsor the H4 extension. We filed an NPT extension as soon as we got to know about it.
- We traveled out of the US and the H4 i94 was shortened due to the passport expiry on re-entry. We forgot to track the i94 expiry but applied for an H4 extension as soon as we realized our mistake
What if an H4 extension is denied in the home country and bar for some X years then what is the next step to get back to the US legally?
Usually, they do not bar H4 from entering simply for missing filing the H4 extension on time as long as the primary H1B has maintained their H1B payroll (job) and status.
In the worst-case scenario of the ban being imposed, there will be an option to file a federal court case to appeal this ban. This is very rare and we do not know of any H4 who got this ban.
Unlawful presence starts on I94 expiry
Even a single day stay after your H4 i94 has expired is counted as an “Unlawful presence”.
No issue if you mention the Truth in DS 160
It is okay to mention this Unlawful presence time as it is a genuine time. It should not affect your application.
How to File a Nunc Pro Tunc Request?
NPT does not have any official form or a template to file with USCIS. It is simply a request on plain paper that you can write to explain your situation and request approval from the past date.
- Supporting documents: We suggest including the supporting documents that help prove your argument of why you missed filing the extension before the i94 expiry.
- Expired Passport copy – If i94 expired due to passport expiry
- Medical condition – If you had any medical condition that prevented or made you forget to file an extension on time, then include your medical bills and a letter from the Doctor about your condition.
- Cover letter: Write a letter explaining your situation. If you need help with writing an NPT cover letter, you can contact us and one of our experts will write one for you.
- USCIS Form: In the case of H4, you will need to fill out form i539.
You will need to send your NPT cover letter, supporting documents, and the USCIS form in the same package to USCIS.
FAQ
The H4 application is a personal application for H1B’s dependents. It is not the employer’s responsibility to file their visa extensions on time.
Most good employers do file and pay for H4 visa extensions but they are not obliged to do it every time.
Many small companies have also started asking the H1B to pay for H4 extensions due to the high costs involved with Attorney and USCIS filing fees.
You can visit your home country, Mexico, Canada, or any other country to get an H4 visa stamp on your passport.
Yes, an explanation and supporting documents would be required to support your story about why you missed filing on time.
In 99% of H4 cases, this is considered a basic negligence offense and the visa office in the US embassy is lenient.
Yes, you can get the NPT approval even after spending 180 days in the US after the i94 expiry. It depends on the USCIS officer and how they interpret your situation.
It would be good if they approved your NPT application with a back date. The unlawful presence is removed.
You do not need to declare it in future applications as long as the previous i94 date has been matched.
If they deny it, you will have to leave the US. Then, apply for an H4 visa stamp with the US embassy and get an entry ban waiver to re-enter.