H4 overstay due to employer oversight. Please help.

[zohn]

My wife is on H4 visa (I'm on an H1B visa) and her I-94 expired Jan 6, 2011, whereas my I-94 is valid until June 30, 2011. When filing for an extension for my H1B visa recently, I inquired and found out that an I-539 form had not been submitted by my employer when they arranged for my H1 transfer here. I requested the HR people to submit my H1B extension papers and my wife's I-539 forms with a letter requesting a nunc pro tunc resolution of her status, along with an explanation that it was the employer's oversight that had caused this to happen. After some processing delays here, we finally received a receipt notice for my wife's I-539 form dated June 1, 2011.

My wife's 180-day period consequent to her I-94 expiry is fast approaching and I am requesting your opinion on what we should do - should we stay until a decision has been made by USCIS, or should we leave the USA before the 180-day period is exceeded and attempt to get an H4 stamp at a US Consulate in India? Does the fact that we have a receipt notice confer any kind of justification for staying here until we hear of a decision on the I-539 form?

Thank you!

[deep915]

Hi,

I was also in a similar situation and conulted a paralegal for advice. My wife's I-539 was not submitted while my H1-B petition was sent. My wife's H4 status with my previous H1B was denied(my H1-B and her H4 was pending for quite sometime with my previous employer). Since my H1 was submitted, i had a receipt date while my wife became out of status. I applied her I-539 and got receipt within 7 days. Paralegal advised me to send my wife back to home country.

The point is whenevr such a situation occurs it is best to send your wife back to home country to get a new H4 visa stamp. Once she leaves US, current I-539 petition doesnt matter. Since you already have receipt notice(I-539) before 180 days cut-off it might be OK, iam not sure.

If there is a travel need then you need not wait for the I-539 approval to get H4 visa stamp.

Currently Vermont SC is taking 4 months to process I-539 though website indicates 2.6 month timeframe(my personal experience).

[zohn]

Thank you for your reply. How many days was your wife out of status? And what was the final decision on her I-539?

One factor that complicates things for us is that we have an infant daughter born here who is completely dependent on my wife and her US passport hasn't arrived yet. I don't think we can get her visa for India and everything done in the next few days even if we get her passport today. My wife going to India by herself would be such a negative effect on our baby that I'm very resistant to that idea.

[deep915]

My wife was out of status for a week. Her I-539 has a receipt date of March 11 and I am yet to receive any news of her approval. When contacted several times i was given an email ID to follow up. When I emailed(June 6) i got a response(June 29) that it is going to take another 30 days for review. I guess it will be the end of July until we hear anything on her I-539.

She is in India and will attend her H4 interview soon.

[zohn]

The processing center for our application is California...and currently it says the processing time is 2 months. I'm completely torn about what to do. The attorney's office I contacted could not advise me one way or the other...half of his colleagues said stay until decision is made and the other half said leave before 180 days.

Good luck to your wife for her H4 appointment. Please post here the results of her I-539 decision.