H4 i-94 expired but valid I797

My wife and kid had H4 visa from July 2015 to July 2018. Later I filed H1 amendment ( h4 extensions also) in July 2016 and got approval till July 2019 . We all three have valid I797s till July 2019.
Later my wife and kid travelled to india in Dec 2017 and returned in Jan 2018 but they forgot to show latest I797 so they got new i-94 till their visa date which was till July 2018.
I was not aware that newly issued i-94 have more priority than I797.
Recently we are about to file H1 and H4 extensions and my attorney told , my wife and kid are out of status from July 2018.
Attorney suggested 3 options to fix.

  1. Reach CBP deferred inspection office for correction ?
    We reached out to CBP for correction ,they said they won’t fix it as its already late.
  2. Apply H1b extension and Nunc Pro Tunc(NPT) H4 extension with USCIS .
    H1B Approval came but waiting for biometrics and result( my guess is NPT result will not come by Jul 2019).
  3. Go to India and apply for US VISA.

Questions:

  1. As we are getting closer to 1 year after I-94 expiry , is it good idea to go for stamping or wait for NPT result ?

  2. If you suggest to go for Visa .
    a) Am i eligible to go for stamping to canada or should i go to home country ?
    a) Does visa officer know about my out of status issue ?
    b) Am i eligible for Dropbox(because my existing visa was expired in july 2018 which is within 1 year) ?
    c) What are the chances of H4 successful stamping ?
    d) if Stamping is done successfully ,will there be any issues at port of entry ?
    e) If stamping is not done , will i get ban for 3 years because they are out of status for more than 180 days ?

  3. If you suggest to wait for H4 nunc pro tunc result , what are the success chances for NPT ?
    ( My worry is if by any chance H4 NPT extension denied and we go to india after 1 year , there is chance for 10 year ban which worst than 3 year ban )

please suggest . Thanks in advance.

I suggest to go for visa stamping outside US and not rely on NPT result.

NPT can be denied and then you will have already more out of status time.

Visa officer knows everything about out of status as everything is recorded including your i94 dates.

You can go to Canada for stamping but i suggest to go to home country.

Chances are good for H4 visa stamping and you may be asked to explain the reason.
You will also need to mention the reason of overstay in DS160 form.

Thank you very much quick reply .

  1. While booking visa appointment, as per questions it shows me i am eligible for dropbox (because my current visa expiry was less than 1 year ) . Am i eligible for dropbox in this scenario ? If So i don’t have chance to explain reason apart from providing explanation in documents.
  2. I don’t see any option in ds-160 form to explain the reason for overstay in DS160 form.
  3. If stamping done successfully , still will there be any issues at port of entry ?

Appreciate your time for answering these.Thanks.

If it says that you are eligible for Dropbox, then you should be.

There must be a question on DS160 asking for your ‘overstay’. I don’t recall the exact question number but there is one.

I cannot guess if there will be any issued at port of entry or not. H4 is usually not a risky visa and there should not be much issues.