H4 Interview with expired H4 visa more than 180 days stay in the US


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Dear Sir,

Need a serious help for my wife's H4 Visa Interview (at New Delhi).

My wife entered first time in the US on March 2009 with H4 stamp valid till Sept 2009 (as my previous H1b validity - Employer A).

In July, 2009 - she gets her H1b approved from Oct 2009 to Sep 2012 (Employer B)

In Aug 2009, we found she is a pregant and decided to get on the job after a year (just a verbal communication with her employer B).

In April, 2010 - she delivers a baby in the US.

My wife's health is OK but we found our baby' head needs an Orthopedic treatment. We decide to change my wife's status back from H4 to H1 (working her full time might cause baby's serious health issues). Approached her Employer B. No response. We don't have her H1B approval copy (except EAC no). Neither she had been applied for her SSN or nor having any Salary slip / paid wages etc. during Oct 2009 to Oct 2010.

In Nov 2010, I applied I-539 (to change her status from H1 to H4)with $ 300 application fee; including all my H1B documents, her medical / hospital records explaining the whole situation)

USCIS sent the appplication back on Dec 23, 2010 - saying incorrect appliation fee.

I resent the application with correct $ 290 fee on Dec 27, 2010.

We got an EAC no for her change of status on 10, Jan 2011

On May 6, 2011 - her change of status to H4 is denied - saying not being filed within time since her previous status of H4 was expired on Sep 2009, and she has violated the law having over stayed for more than 180 days in the US.

Meanwhile, my employer A company was taken over by employer C and they filed my H1b in Mar 2011.

I received my H1b approval with employer C on May 9,2010 - valid till Apr 2013.

The new employer C - manager asked to re-stamp H4 for my wife from India, since we don't have her current I-94 (her H1B copy from her Employer B any letter of leave that we can prove she maintained her H1b status)

She departed to India on 15th May (within a week after receipt of the denial letter) with our 1 year old baby, to appear for H4 stamping.

Now my question -

1) Since this H4 stamp appication is not her previous H4 visa renewal, may she be asked to present her previous extension of stay copy since she stayed for 26 months in the US ?

If yes - can we give the EAC no for her H1b approval. We dont' have any copy of her extension of stay.

2) If inquired more in anycase, should she show her H4 change of status denial copy and say the officer - explaining the whole situation.

3)Since she has not maintained her H1b status and applied for H4 status within a time - what would be the reaction from the Consulate officer in this case ?

4)Since our baby's medical / orthopedic treatment is going on (next appointment in the month of July) - and Hanger's Prosthetic Centers or such services are not available in India - what if she presents our baby's all US medical reports to Visa Officer to allow my wife to re-enter US and proceed for on-going medical treatment for our baby who is US citizen.

Waiting for help and information.



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