My wife and 3 yr. old son are on H4 Visa and they are living in USA with me now. They have an approved I797 for H4 from my previous employer till April 2020. I switched employer in January 2018 and had approved H1B till January 2019.
By the end of 2018 we traveled to India for a vacation and had our Visa stamped. When we entered the country by the end of December 2018 the I94 for all 3 of us got updated to January 2019. My H1 extension was applied then and got it approved till June 2020.
I was completely unaware that the I94 dates get overridden until I sent the documents to attorney for H4 extension a few days back. Now they are currently in overstayed status for a little more than a year.
She and my kid are traveling to India this week for a Visa stamping from Chennai consulate.
What is the probability for H4 Visa getting approved? If the visa gets denied, what are the steps to file a 212(d)(3) waiver?
Also, in my kids DS 160, should I answer unlawful presence / overstay question “Yes” and provide a justification?