H4 Overstay 1 yr due to i94 expiry

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?

Please advise.

Hi @Subramanian_Umasanka

Usually, the H4 overstay should not cause an issue. Many people have got the H4 visa approval with a genuine reason.

But, overstaying for more than an year is still a big issue and you will have to explain in all future visa applications.

Ideally, you should have filed the H4 extension with Nunc Pro Tunc option within US to ask for extending i94. But, its okay even if you have not filed it.

Did you discuss NPT option with your attorney?

You will have to explicitly mention the overstay on DS160 form as ‘yes’ and explain the reason.

Hi Anil,
Thank you for the response.
We did discuss our options with the attorney. Following are the 2 options they provided.

  1. File an NPT application from within US. When we asked about accumulating more unlawful days(due to the time taken for NPT processing), the attorney said anyway they crossed the one year limit now and left the decision to us. But we decided not to accumulate more unlawful days and decided NOT to go for NPT Application. Also, we didn’t want to rely on the NPT decision.

  2. Go for Visa Stamping and if it gets denied, file a NIV waiver / 212(d)(3) waiver. Based on the approval reapply for visa. We opted this option. When checked online, the current 212(d)(3) waiver processing time is 180 days.

ok…that sounds good.

I just wanted to know that you did discuss your options with attorney.

I think you have taken a good decision as NPT may or may not be approved.

Don’t worry about visa stamping as it has good chances of approval if you have a genuine reason. The NIV waiver can be thought of once your visa is denied.

Thanks again for the response. Will keep you posted on how the interview goes.

Regards,
Subramanian

Hello,

I am in a terrible crisis and I REALLY need some advise/guidance from others who have been through this situation. I’m an Indian citizen here on H1B with an approved I-140. My wife joined me on H4 in 2017 with a validity of November 25, 2018. My H1B was extended till 2021 but due to grave misunderstanding of the law, I failed to extend my wife’s H4. By the time we realized that she was accruing overstay, it was already the 12th month running. We panicked and she left for India on November 14,2019. I know this has triggered a 3 year ban from re-entry and I have already consulted 4 different attorneys as advised on many forums but here’s the dilemma:

1> Attorney 1 says “Ask your wife to apply for H4 stamping. In the likely case that she gets denied, we will apply for her NIV waiver at that point”.

2> Attorney 2 says “We can apply for her NIV waiver first and then she can apply for her H4 stamping.”

3> Attorney 3 says “Sorry, you’re not a U.S citizen or a GC holder so no waivers apply to her.”

4> Attorney 4 says “There is a way forward for your wife, but it will largely depend on timing and your family’s flexibility and goals.” -> I don’t even know what he means! He wants me to pay $475 just to reveal the BIG secret :frowning:

Now, I was keeping my fingers crossed hoping that at least 3 out of the 4 will help me deduce which way to proceed but I feel direction less now. I know my options are VERY limited so it shouldn’t be so difficult to figure out. Which of these attorneys make sense? Is there an alternate to any of these?

I know only those who’ve walked in my shoes would understand the tension and chaos that lies behind such situations and ANY help from good Samaritans would be greatly appreciated. Thank you so much in advance.

Hi @Sauvik_Ghosh

The best option at this time is to apply H4 visa stamp. If you have a valid reason of overstay, US embassy will give you visa.

Once you get visa stamp, H4 can travel.

Please read the discussion above as it is a similar situation.
NIV waiver should be attempted after you exhaust all other options.

Thank you @Anil_Gupta for your response. Did you ever hear back from the couple above about the final outcome of their visa interview?

I didn’t see that update. What would be considered a “good reason” to the VO?

In the end, it is our responsibility to keep up with visa requirements so I am not sure if “I misunderstood the law” would suffice at this instance.

I don’t have a strong reason as my wife being pregnant or, one of us being under critical care of some sorts.

I would like to get your thoughts on how to frame the answer appropriately to the VO during the interview. Honest ideas and suggestions would be greatly appreciated.

Hi @Sauvik_Ghosh

The above couple is currently looking for options just like you.

There is no good reason except the truth as visa officers are trained to catch lies.

There are other similar cases that were reported to be approved.

I will find the link and share here.

Thanks @Anil_Gupta. Can’t wait to read more on that link. Thank you for your research and advise.

Hello @Sauvik_Ghosh,
We are in a similar situation and we opted to go for Visa interview. We haven’t faced it yet.

Will keep this group posted on the results.

Regards,
Subramanian

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Hello @Subramanian_Umasanka and @Anil_Gupta. Thank you guys for updates. I just heard back from Attorney 5. He says “There is a possibility that your wife could successfully obtain something called a “Hranka Waiver” in order to bypass her overstay issue. This would entail the drafting of the request and an accompanying legal brief that explains the grounds on which your wife qualifies for this waiver”. You can read more about it at Hranka Waiver Lawyers | LegalMatch.

I specially liked the part where it says the Hranka waiver is generally requested at a U.S. consular post PRIOR to obtaining a visa.

Thanks guys for this useful topic. Although our situation is very similar, but I want to ask @Anil_Gupta opinion about our case specifically.

Me and my wife are Iranian citizens staying on H1b status. My previous employer filed for H1b and I got the lottery this year, they changed my status from OPT to H1B.

However, they forgot to apply for my wife change of status. Consequently my wife became out of status starting Oct 1st.

Fortunately we learnt that just a few days later and we submitted our I-539 form on Oct 30 and did out biometric on Nov 21st.

Our attorney Mentioned the exact same options as above but since they are some risks and hardships about Iranian visa applicants, we decided to go with NIV first.

  1. Now, given that 50 days from now, we will hit the 180 days overstay (starting from Oct 1st) and our case still is pending, do you recommend to abandon the case and leave the US for the 2nd option and apply in US consulate?

(assuming by leaving the US our I-539 will be automatically closed) Since we are thinking passing 180 days might make our case more difficult if my wife eventually end up going to US embassy for visa interview.

  1. given the fact that we filed our case 100 days ago and just left 50 days to hit the 180 limit, how likely is to hear the result within the remaining 50 days base on the recent similar cases?

Our lawyer was thinking about 3-4 month of processing time but in internet reading anywhere between 6-8 months.

  1. I know you mentioned this Above, but all in all, given our situation in whole how much is the risk of denial if eventually we don’t hear anything and ending up in visa interview chair?

Thank you so so much for you time in advance

Hi @Soheyl

I cannot really say what the chance of approval or denial are. It depends on the consulate officer and their assessment of your situation.

I suggest to leave US before 6 months unless you are ready to take the risk.

Assuming you have filed an NPT H4 application, the chances of approval are quite high but it may be delayed. Current processing time is off course more than 6 months.

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Hello Everyone,

My dependents are also in same situation with overstay status of more than 6 months. My Attorney didn’t provide any solution for me yet.

I just gone through all the conversation here and understand there are options available to bring them back.
Hi @Anil_Gupta Can you share us the some of the past experience from the forum related to out of status
Hi @Subramanian_Umasanka Good Luck, please keep us posted. Thank You.

The best option after 6 months of overstay is to leave US and get H4 visa stamp outside US.

My H1B extension was filed in Jan 2019 but that time my family was in India and they traveled back in Feb 2019 with stamping until March 2019. We missed to file H4 extension within March 2019 and we realized this when I am filling H1B extension in Feb 2020. I understand below situation might happen when my dependents goes to India for stamping.

Can anyone please let us know my understanding is correct?

  1. Filling DS160 explaining the situation for overstay
  2. Visa officer might raise a waiver 212(d)(3)(A).
  3. We need to wait for this waiver to be approved(time more than 6 months)
  4. Then apply for H4 stamping again.

Hi @sakthisujith

Yes, this may happen.

Hi @Anil_Gupta, Today we got an RFE on our petition. I hope that is a good sign. Do you have any recommendations? My wife will hit her 180 days bar exactly one month from now. so do you know how long it takes for them to make the final decision after the RFE? At the same time, I have requested from our senator office to request for an expedition, hope will have a positive impact.

Hi @Soheyl

Have you already received the RFE document? I do not think that RFE can be completed in one month if it was issued today or sometime last week.

USCIS simply waits for your response after issuing RFE. If H4 is already on the verge of completing 180 days, my suggestion is to go out of US and get H4 visa stamp. The chances of H4 visa approval are good.