H4 i-94 expired but valid I797

USA H1B Visa
1

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.

2

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.

3

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.
    Ds-160-us-travel
    Ds-160-us-travel.png924×1436 140 KB
  3. If stamping done successfully , still will there be any issues at port of entry ?

Appreciate your time for answering these.Thanks.

4

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 issue at port of entry or not. H4 is usually not a risky visa and there should not be much issues.

5

Just want to update on this thread and close it.

We explained the same in Ds-160 form,my wife and kid went to stamping through dropbox , its quick and H4 is approved , they came back to USA.

In btw , Thank you Anil for your tremendous work on clarifying visa related doubts for everyone.

6

Thanks @usaH1bHolder for sharing your case status.
We appreciate it. Congratulations on approval.

7

Hi Kumar,
Thank you for sharing us the details. We are in a similar situation where my wife and 3 yr. old kid have an approved I797 until April 2020 from previous employer. But because we did a international travel in 2018, her I94 got overridden with my new employer’s petition end date. Now they are in overstay status for more than an yr.

They are doing an international travel to India and planning to schedule a Visa interview from Chennai consulate by the end of this month.

Please let us know which consulate you submitted the passports for dropbox. Were there any specific questions during port of entry?

What is the probability of getting Visa Approved without any issues?

8

Hi Umasankar,
We submitted at Hyd consulate. No questions asked at port of entry.

IMO , H4 visa approval is not an issue. Again it depends on VO. Wish you all the best.

1 Like
9

Thank you very much for the response. This gives us some confidence.

Regards,
Subramanian

1 Like
10

Hi Anil

Need your input here.
There was a delay in delivering my H1B extension application to USIC office that happened because of FedEX service. They supposed to deliver it on 1-Dec-2020 but they delivered it on 2-Dec-2020. my i-94 expired 1-Dec2020. BTW i am yet to receive my receipt number from uscis . Can you let me know what can happen now and how yo proceed Can USIC officer consider it and approve without RFE ? …

11

We are in a similar situation where my wife and my 2 kids have an approved I797 until August 2021 with my current employer. But because we did a international travel in April 2019, her I94 got overridden with my previous employer’s visa end date. Now they are in overstay status for almost a year. What are best possible options for them? If they go to India to get the stamping will it have any issues? My employer attorney mentioning like my wife might get 3 year ban on entry to US. Also my attorney suggesting to submit waiver 212(d)(3) for overstay. Do we need to submit the waiver or better go to India for stamping? @Anil_Gupta @usaH1bHolder please share your experience. Also Umashankar, are you able to resolve the issue?

12

I suggest to follow your attorney’s advice.

13

Did you went to home country for dropbox or did in canada? In dropbox, did they call you for interview for visa or you got it straightaway? I am in same boat and thinking to go to canada, so will appreciate your help and clarification.

14

Hi Anil,

I am in similar boat. I have valid i797 on h1b and my attorney (including me) forgot to file extension for my wife H4. So her i94 expire 1 month back but i have valid i797 for 2 more years.

Questions:

  1. Can my wife alone go for h4 stamping in canada being out of status or you have to go to home country?
  2. Is dropbox possible in canada OR that option is only available in home country (India)?
  3. Is it ok to mention in overstay in DS160 that we forgot or they need legit reason?

Would appreciate your help and prompt response.

Thanks,
PG