Late H-4 extension or Not required (urgent)

[unc7uth]

Hi All,

My wife - H-4 and I-94 expired in Jan'16 2011 as my company's law firm extended mine H1 and forgot to extend her's.

On April 14, 2011, we filed I-485, adjustment of status with 245(K) as it was within 6 months period and EAD for her as well as I-485 for me. This is when we noticed that I-94 is expired.

I believe her current status is I-485 pending.

We have not received any response yet.

I need to decide whether - I should go ahead and file late extension of H-4 using I-539 now ?

Or, it is better to wait for I-485 response ?

I want to avoid her going back to India to get stamping as she is five months pregnant and want to avoid long air travel. Hence, I am not sure whether filing late extension may trigger the USCIS response that she needs to go back to India to get stamping.

Regards,

VS

P.s. 6 months since I-94 expired will be on July/16/2011.

[unc7uth]

Pls suggest if I should go ahead file the late H-4 or just wait and hope I-485(with 245(K) is approved.

Regards,

Vishal

[Belle]

Talk to a good immigration lawyer. My suggestion is to file H4 nunc pro tunc. You don't need any complications right now.

[Belle]

Not sure 245k would apply in this case. 245k is for out of status, while your wife is in unauthorised presence, which is worse. Talk to a lawyer.

[unc7uth]

so with I-485 filed , her status is protected or not ?

So, the out of status was only from January'2011 (i-94 expired) to April'2011 (i-485 filed).

My company's lawyer is filing H-4 (late extension) and saying even if it is not approved, she is protected as her I-485 is filed ( and he says I-485 should be approved because it is filed with 245(K) for her violation which is less then 6 months.

Regards,

Vishal

[Belle]

Generally, one can't file I-485 with an expired I-94 (spouses of citizens is on exceptions, but that's not your case). Her I-485 petition may be denied since she applied after her authorized presence expired. Again, I am not so sure about 245k - as far as I know, it does not protect from unauthorized presence. If the lawyer is confident, it is a good sign.

[sanjay_6patel]

Dude, you have put yourself into worst mess possible.

What you were doing for last 3 months?

At that time your wife was only 2 months into pregnancy and she could have gone back to home country for H4 stamping (thats what I did but in my wife's case it was only expired H4)

I really hope that your attorney is doing right thing and you will be able to get out of this mess.

[unc7uth]

So, as of now :

We have filed I-485 for her with 245(K) in April'2011.

and we also filed I-539 (late filing of H-4).

The attorney says even if late filed H-4 is denied, her status is protected because I-485(with 245(K) is pending and USCIS should forgive as violation is less then 6 months when I-485 was filed.

I can just hope now that everything goes well as nothing else can be done now.

Regards,

Vishal

[Belle]

I think you are missing the point here. The late H4 filing is not done to give her status, it is done to make sure I-485 is not denied. That's the whole point - she does not need H4 any more, but she needs to make sure I-485 is approved, not denied. Saying that it is no big deal if H4 is denied because she is protected by AOS is like saying it is no big deal the first floor of the house caves because we live on the second floor. If you are so sure I-485 is not going to be denied, then there is absolutely no need for H4 filing. My take is that your lawyer is not so sure.

[unc7uth]

Hi Belle,

Thanks a lot.

I understand your point.

Filing H-4 is to make sure I-485 is not denied and that we have tried to be proper from our side and not just for status thing.

My lawyer was repeatedly telling me that H-4 filing is not required and Her I-485 will be approved. But, based on your previous responses and online cases, I insisted that we should file I-539. One issue is that I-485 was filed prior to filing the I-539(H-4).

At this point what actions can I take ? to prevent the case getting worse ?

Thanks a lot,

Vishal

[Belle]

"One issue is that I-485 was filed prior to filing the I-539(H-4)."

This is why you need to file it nunc pro tunc. That will eliminate the time discrepancy.

Nothing else you can do, just wait.