H4-i94 Expired for nearly 10 Months

[subhastat]

Hi,

 

My wife came to USA on Feb 2015 after her vacation in India using my previous employer visa which was valid till May 2015, unknowingly at port of entry she only produced the passport and not her latest i-797 (from my current employer) which is valid till 2017. 

 

Now her visa from my previous employer & i94 was expired on May 2015 , unfortunately we ddin't notice that she was in out of status for nearly 10 month now.

 

We have visited CBP office to correct the i94 to reflect the date based on her latest i797 , but officer has refused to correct it & said its not their fault that my wife didn't produce latest i797 at the port of entry. Instead they suggested to go Mexico to get re-stamped  or file i539 extension.

 

We have applied for i539 2 months ago & still waiting , Kindly advice me on my below questions.

 

1. Can we make an attempt to some other CBP office again to get i94 corrected?

2. What's chances for getting visa stamped in India based on the i797 which is valid till 2017 ?

3. It looks like there is a 3 year bar of re-entering USA as we are currently 180 crossed , is that strictly followed or random picks ?

 

Please Advice.

[pontevecchio]

She should not leave the country. You need to get a Lawyer involved to file a "nunc pro tunc" as it were. It is an automatic bar if she leaves. Get a Lawyer involved NOW.

[subhastat]

As per CBP officer advice & consulted attorney we have re-applied i539 2 months ago but it seems it will take another 4 to 5 months. By the time my wife's out of status will be more than 1 year. 
What will be the best option to chose ? 
Going back to India before crossing 1 year and getting it done (wondering about 3 years bar) or can we wait till i539 result (Not sure whether it will be approve or deny )

Please suggest.

[permaudit]

As pontevecchio suggested, get an attorney involved. It should have been an nun pro tunc filing.

[JoeF]

If she leaves the country, she will be banned for 3 years (10 years if the overstay is a year or more.)

She needs to talk to a good immigration lawyer ASAP.

[subhastat]

If she leaves the country, she will be banned for 3 years (10 years if the overstay is a year or more.)

She needs to talk to a good immigration lawyer ASAP.

Joef, We have already spoke to our attorney and he suggested her to leave the country. I am not sure what we have to do now. 

[pontevecchio]

Make sure you have been talking to an Immigration Lawyer and not a paralegal. Discuss the matter with the firm of Murthy.

[rohang]

this is a mess, i will suggest to get 2nd opinion form attorney. not from forum.

 

I will suggest contact murthy.