Employer forgot to apply H4 extn and my wife's i94 got expired

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Hi...my employer forgot to file for my wife's H4 extension along with my H1B extn (applied on July14th, 2011 and currently under initial review status). Both of our i94's got expired on Sep10, 2011. I was assuming we both will have only one receipt no for our extensions, and hence didn't bother much, thinking we're legal to stay being our extension under processing. Now that I realize my wife is out of status since 2 months and asked my employer to file for her extn immediately. Could you please let me know how this case is treated by USCIS ?

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From other case notes, I understood that my wife's H4 extn falls under Nunc Pro Tunc with a 2 month out of status. Can she get the i94 back dated (from Sep10,2011) once we apply the H4 extn now?

Also, I got a full time offer from the client, and they are waiting for my current H1B renewal so that they could transfer my H1. Do I have to wait untill my wife's H4 visa is also approved (under Nunc pro Tunc) in order to transfer my H1B visa to the client ?

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Actually I got full time offer from the client, and they are waiting for my current H1B visa to get approved so that they could transfer my H1. In the mean time my current employer is filing for my wife's H4 now (already out of status since Sep10, 2010). Do i have to wait until USCIS takes a descision on my wife's H4 visa before I transfer my H1 to the client, or can I request the client to process new H4 visa for my wife ?

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If your wife's most recent I-94 expired on September 10, 2011 (I believe you meant to say "2011" and not "2010" since you initially mentioned 2011 in your first message) then she has been accruing unlawful presence since September 11, 2011. If she accrues more than 180 days of unlawful presence and leaves the country, she will trigger a 3 year bar from readmission.

If your current employer files the H-4 application for her now, it may be approved but the request for extension of her H-4 status will probably not be approved since she is not currently in nonimmigrant status. This means that she may receive an I-797 Approval Notice, but there will not be an I-94 card attached to it. In that case, she will need to travel abroad to obtain an H-4 visa and be readmitted into the U.S. to get a new I-94 card at the port of entry. But keep in mind, visa issuance has been subject to higher scrutiny, particularly in India and for those cases involving H1B workers employed in an EVC (employer-vendor-client) type of job. The consular officer could even ask your wife about the details of your job to determine whether or not to issue a visa to her! Depending on the facts in your case, it may be a good idea to file a nunc pro tunc request for a backdated I-94 to avoid these potential issues at the consulate, but an experienced immigration attorney really needs to analyze your case carefully before making a recommendation.

If you intend to move to another employer, you should have that employer file the H1B case for you and have them file an H-4 application for your wife regardless of what happens with the H-4 application filed by your current company, especially if that case is pending at the time you move to the new employer.

You and your prospective employer should have an experienced immigration attorney review your and your wife's case to make sure you are taking the appropriate steps to obtain and maintain status.

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Thanks much for your valuable reply. Just today I got my H1B renewal (from employer A). Last week we filed a nunc-pro-tunc H4 visa extension for my wife (still didn't get the receipt no) requesting a back dated (Sep10, 2011) I94 card for my wife. The lawyer told me that we may or may not get the back dated I94, but mostly she'll get the H4 visa extended. Incase if we don't receive the back dated I94 for my wife, then she will have to travel to India, go for stamping and get the new I94 at port of entry on her return.

In the mean while, I got the full time offer from the client, and they have been waiting for my current H1 visa approval from Employer A. Now that my H1 from employer A is approved, they can initiate the H1 transfer for me. Can I really be able to get it processed or do I have to wait for my wife's H4 visa renewal (from Employer A), which might take another 3-4 months from now. Or can my new employer file for my H1 transfer and a new nunc-pro-tunc H4 visa for my wife again ? Can you please suggest.

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  • 1 month later...
  • 1 year later...


I can tell you about what happened with me and it might help. My company (i have been working with them for 3 years) applied for my H1 Extension but forgot to apply for my wife since this was the first time after our wedding. My H1 was approved for 8 monthly (since its the end of my 6 years term) and i noticed that my wife's I797 was missing 2 months later, i told this to my lawyer. They told me not to worry, they had to apply for my extension anyway and this time along with my papers they made a Nunc Proc Tunc H4 Application. In the application they added an appendix mentioning that they forgot to apply last time and that it was at no fault of my wife, and that asking her to leave the country now will cause great hardship to the family. They also mentioned that otherwise she qualifies for an approval and that she has done nothing to disqualify. We got the approval in 10 days, when going through her new I797 i realized they have not back tracked the dates on her I797 - i.e. they have not given it for the missing period. I informed my lawyer who in turn contacted CIS and got the error fixed.

Anyway bottom line if this happens dont worry, take immediate action and get legal help. But things can be fixed.

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  • 1 month later...

Rahul, I am in the same situation as you, my wife is out of status for last 3 years and she got new approval till 2016 now but the dates are not backdated (approved dates Jan 2014 - Nov 2016) but her I94 expired in Jan 2011 so she has gap in her I797 ( from Jan 2011- Jan 2014) , can you please advice on how to get this fixes .....I think your wife is out of status only for less than 180 days but my wife is out of status for almost 3 years....please advice  

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  • 3 years later...

Hello Friends

Need a information on my Wife  H4 approval

My H1 was approved and i missed to apply the H4 for my wife and daughter and applied immdedaitly after realizing but it was applied after 2 months after thier i94 expiration.
we applied with a cover not to USCIC that we are waiting for the approval for their H4

I have below questions ,please help me to get the answer

1)How many months can my wife  stay in USA because their i 94 was expired in July and H4 extension was filed after 2 months
also currenltly there is no premium processing and its taking much time,do they need to go back to india if they cross 6 months of stay after i94 is expired?

2)Can i change employer during this period ?if Yes what is the process?

Can you please update i have the same issue now forgot to file H4 extension and we have filed extension after 45 days of unlawfull stay

My wife is pregnant and its a risk to travel now

Pls pls help to get answers



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  • 1 year later...

Hi Kumar,

I am in same situation like yours.Application for H4 extension for my wife was delayed by 2months and today I got notice of intent to deny. I had applied in time but the application was returned because I missed filling no. Of applicants field. So it went beyond 2 months.

Can you please advise what happened to your case and how should I proceed?




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