Immigration officer at port of entry has the power to deny entry if they believe that your intentions are not on the line of the visa type.
They do not generally look at past unlawful presence if the visa has already been issued by US embassy.
Final decision rests with the officer.
Hello Sakthivel,
Sorry about the delay in responding back. The reason provided to me by my lawyer was as follows:
“Oversight in filing for extension of H4 visa along with Spouse’s H1B extension due to grave misunderstanding of the law. An honest mistake.”
Hi,
Yes my wife landed in the US on 10.31.20. She was not asked any questions at the port of entry. It was as smooth as it can be. Just focus on and pray for getting the visa stamped. Rest should be a piece of cake.
Hello Pritvi,
From what I have read on most forums and in consultation with my attorney, waiting period will be counted as unlawful presence if the NPT is denied. It is a risk but if the waiting period is within 6 months of visa expiration, then she may still be able to apply for a visa stamp in her home country.
Hello Sauvik,
Thanks for the reply. I have done paid consultation with 2 attorneys besides the attorney working on my case. According to them getting I- 485 receipt ( applied for green card in October) will give authorization of stay for now and will start accruing unauthorized stay again from the day we receive denial ( hopefully not). Also had EAD approved last week. So we decided to stay here and wait for decision on H4
Thanks Sauvik for the response.
@Sauvik_Ghosh , @Subramanian_Umasanka
First of all Thanks to both of you for sharing your experience here.
I am in similar situation. My wife I94 expired on April 2020 , Oct 2020 applied H4 NPT (at California) and Biometric also done in Nov 2020. Currently H4 processing time for California Centre showing 15+ month.
If she leave US prior April 2021 (before 365 days) can she be back to US if she get her H4 visa stamp from India while H4 NPT is pending?
Thanks in advance.
Hello Inder,
Thank you for asking the question. I am not sure how the local Consulate in India would treat your wife’s H4 renewal application if an NPT is “pending decision”. That is a good question for your attorney to answer and one that he / she needs to answer quickly!
Obviously you would have to declare on your DS-160 that she overstayed along with a valid reason if you chose to send her back before April 2021. Speaking from personal experience, the Consular officer did not question my wife’s overstay or, her future intentions. He just asked how long I have been in the United States and since they could see that my records were clear, they had no doubts that she was not going to be a liability of any sorts. It was a quick in and out for her.
So my suggestion would be to first check-in with your attorney and then promptly decide because if the NPT is denied, then the entire overstay would / could be counted against her.
Secondly, stay honest through the process, trust the system and have faith in the Universe. It will all work out. All the best!
Thank you very much Sauvik for your reply.
Hello @ichawla
I completely understand that the situation can be painful. I echo what @Sauvik_Ghosh says. I just want to add one more point to it.
Your spouse has already crossed the 6 months out of status mark and you have another 3 months left for the 1 yr mark. Please continue to monitor how H4 cases are moving next 2 months with the new administration. If there is no progress and waiting time remains the same, then you will have to make a call (Whether you want to wait for the NPT decision or travel to India).
Good luck. Stay honest and things will turn good for you.
Thanks Umasankar for your reply.
@Subramanian_Umasanka
Hi Umasankar,
Few question for you, kindly help me -
Hi @ichawla
Thanks!
Thanks Umasankar for your reply.
If that is the case then wont it be applicable for my family as well? The only difference is that you have’nt apply NPT before leaving US as I did. So I hope my family would also get their H4 stamp 
Btw, can I apply apply waiver 212(d)(3) before leaving US ( any idea)?
@Anil_Gupta
One more doubt related to my wife case -
My Wife has accrued 6+ months after I94 expiration and H4 NPT applied last year Oct 2020.
Currently H4 process time is showing 15+ months and to expedite my case I contacted my Senate. He agreed raise a request on my behalf but need certain evidence based on which he can apply expedite request because USCIS consider an expedite request if it meets one or more of the following criteria mentioned in URL
(How to Make an Expedite Request | USCIS).
I am unsure if I fall under any of the category. Is there any way I can share some sort of document to expedite my request. My case is purely based on humanitarian & emotions.
Please suggest.
I have been in the same situation as @Sauvik_Ghosh and @Subramanian_Umasanka were and thank you to both of you for sharing your experiences. Here is my experience and I hope this help anyone in need:
My wife was out of status for 7 months due to passport expiry date and I 94 validity she got. In my case the CBP officer at the port of entry told her that she continue to stay in US based I797 validity after she gets her new passport. We believed him and this year in Jan 2021 when I filed for my extension the attorney pointed it out. Attorney said that she can try to get it corrected using NPT but for that the approval is taking too long. We immediately decided that she should leave the country. Feb 2021 she left. In March 2021 she did a drop box and we did mention about out of status in DS 160. Her visa application was refused and she got the passport back with white 221G asking her to appear for an interview. She went to Delhi Consulate and the VO asked her to explain about out of status. She explained exactly what the CBP officer told her at that time. We also had our son during out of status time period ( although that’s not an excuse). She told him about that as well and gave him all her I797 and my approval notices from last 10 years. VO said he don’t see an issue, kept her passport and docs but still gave her yellow 221G. By God’s grace her visa was approved in 4 days. the whole process from drop box to visa approval took 20 days.
My advice for anyone who is in this situation is to stay focused and honest and keep praying.
Thank you to @Anil_Gupta for his affirmative opinion about going outside the country and getting the visa stamped
Thank you @Sarabjot_Nannar for sharing your story. I can’t thank @Anil_Gupta and this forum enough for the support offered during the difficult times. Eventually the objective of the post is that it should people in the future.
Hi Anil,
Unfortunately I have failed to file h4 visa for my wife and she was out of status from 2019 dec to 2021 Jan.which is almost 13 months .
The I realized and contacted my attorney and employer .
My attorney suggested that do not leave the country until it get approved.
They have filed my h1 and h4 (NPT)for my wife on Jan 2021 Jan 5 th and my h1 got approved with in two weeks and h4 approved aug 2021.
She got approval notice from may 2021 to may 2024.
How do I know what is the status from 2019 dec to 2021 may ?
Hi all , did any one aware of this issue ?
Unfortunately I have failed to file h4 visa for my wife and she was out of status from 2019 dec to 2021 Jan.which is almost 13 months .
The I realized and contacted my attorney and employer .
My attorney suggested that do not leave the country until it get approved.
They have filed my h1 and h4 (NPT)for my wife on Jan 2021 Jan 5 th and my h1 got approved with in two weeks and h4 approved aug 2021.
She got approval notice from may 2021 to may 2024.
How do I know what is the status from 2019 dec to 2021 may ?