L2 to H4 filling delay

[nanuu]

My husband was with company A on L1 visa and his H1B got approved this year with company B and he started working on H1b from mid of december.
company B has just filled my H4 petition after mid of december 2013. I think I am no longer be on L2(Dependent) visa as my husband H1B gets approved and he has stamrted working I n H1B.....but I have I94 valid till march 2014 which I got through my L2 visa...
I have not filed H4 with his H1 as I was not married to him when he filled his H4; can I apply for H4 later on as I did and stay in US. I m bit confused, I don't want to be out of status. Please help and please tell m the best approch. Thanks

[raghvi]

My husband was with company A on L1 visa and his H1B got approved this year with company B and he started working on H1b from mid of december.
company B has just filled my H4 petition after mid of december 2013. I think I am no longer be on L2(Dependent) visa as my husband H1B gets approved and he has stamrted working I n H1B.....but I have I94 valid till march 2014 which I got through my L2 visa...
I have not filed H4 with his H1 as I was not married to him when he filled his H4; can I apply for H4 later on as I did and stay in US. I m bit confused, I don't want to be out of status. Please help and please tell m the best approch. Thanks

Your post sounds confusing. How did you get L2 when you were not married to your spouse? Where are you currently located? Also if your husband has started working on H1 you cannot to be on L2 from that day onward and if you didnt have a L2 to H4 filed prior to your husband's move to H1 you might already be out of status.

This is my opinion not legal advice.

[nanuu]

Your post sounds confusing. How did you get L2 when you were not married to your spouse? Where are you currently located? Also if your husband has started working on H1 you cannot to be on L2 from that day onward and if you didnt have a L2 to H4 filed prior to your husband's move to H1 you might already be out of status.

This is my opinion not legal advice.

I already said I was not married to him when he filled his H1B, I came here on L2 but his new company forgot to apply my H4 petition before OCT 1. They just applied (mid of Dec 2013)for my petition and what I think is that I am having a valid I94 of my L2 visa till Mar2014, so I guess I am fine with my stay in US. please let me know.

[raghvi]

I already said I was not married to him when he filled his H1B, I came here on L2 but his new company forgot to apply my H4 petition before OCT 1. They just applied (mid of Dec 2013)for my petition and what I think is that I am having a valid I94 of my L2 visa till Mar2014, so I guess I am fine with my stay in US. please let me know.

"Forgot to apply" is hardly an excuse for not maintaining status. And merely having L2 I-94 doesnt grant a valid status since primary L1 is not on L1 anymore.

Your Fiancee was working for employer A on L1 and applied for H1 for B in April 2013 as COS.In between you two got married and you applied L2 as US consulate and entered US on L2 and go an I-94 associated with that at the POE? Am I right or did you do a COS from some other status to L2 while being in US?

His H1 got approved say around Dec 15 2013. From that date his L1 was invalid and so was your L2. So if you didnt file a L2 to H4 prior to Dec 15th 2013 then basically you went out of status from Dec 15th 2013.

There are two options. Leave US, go for H4 stamping outside US, and re enter on H4. Or file a nunc pro tunc COS request.

Now you can possibly file a nunc pro tunc request but, approval of a nunc pro tunc request is entirely at the discretion of the USCIS. If the nunc pro tunc is not approved, you would have to leave US, get H4 stamped and re enter on H4.

You need to see a good immigration lawyer if opting for nunc pro tunc requests as its not ordinary for USCIS to approve the same.

This is my opinion not legal advice.

[nanuu]

"Forgot to apply" is hardly an excuse for not maintaining status. And merely having L2 I-94 doesnt grant a valid status since primary L1 is not on L1 anymore.

Your Fiancee was working for employer A on L1 and applied for H1 for B in April 2013 as COS.In between you two got married and you applied L2 as US consulate and entered US on L2 and go an I-94 associated with that at the POE? Am I right or did you do a COS from some other status to L2 while being in US?

His H1 got approved say around Dec 15 2013. From that date his L1 was invalid and so was your L2. So if you didnt file a L2 to H4 prior to Dec 15th 2013 then basically you went out of status from Dec 15th 2013.

There are two options. Leave US, go for H4 stamping outside US, and re enter on H4. Or file a nunc pro tunc COS request.

Now you can possibly file a nunc pro tunc request but, approval of a nunc pro tunc request is entirely at the discretion of the USCIS. If the nunc pro tunc is not approved, you would have to leave US, get H4 stamped and re enter on H4.

You need to see a good immigration lawyer if opting for nunc pro tunc requests as its not ordinary for USCIS to approve the same.

This is my opinion not legal advice.

Thanks for your reply....yes I applied L2 as US consulate and entered US on L2 with I-94, valid till 2014. what will be better Canada or India to enter on H4. As well as in Ds160 what should I answer for over staying in US- how should I count the days or should I mention 0 days even though it is.... any idea will it effect the h4 stamping at US Consulate...... what is this nunc pro tunc approach, any idea in how many days can I get I94-H4 if it is approved

[nanuu]

thanks for your reply....yes i applied l2 as us consulate and entered us on l2 with i-94, valid till 2014. What will be better canada or india to enter on h4. As well as in ds160 what should i answer for over staying in us- how should i count the days or should i mention 0 days even though it is.... Any idea will it effect the h4 stamping at us consulate...... What is this nunc pro tunc approach, any idea in how many days can i get i94-h4 if it is approved

please suggest

[raghvi]

For nunc pro tunc you would have to approach a lawyer as its like a retrospective correction of status and would be difficult to do alone. But again USCIS doesnt like "forgot to file Status Change" excuses so there is no surety it will be approved. The easier option would be to leave US, get H4 stamped and return. In the DS-160 you can mention that you didnt file a COS from L2 to H4. Though it shouldnt but it might affect the H4 decision in terms of time due to the additional processing. And because it may take some extra time its advisable to do so in home country rather than a Third Country like Canada. As for H4 I-94 it would be as per your passport expiry/spouse's H1 petition/your H4 expiry which ever is earlier, it depends on the Visa Officer at POE.

This is my opinion not legal advice.

[nanuu]

Thanks Raghvi

I went back to India and had my H4 stamped.

[mohameds]

L2 to H4 stamping DS160 question

Hi nanuu,

I am also in the same boat. In DS160, there is a question like

Have you ever been unlawfully present, overstayed the amount of time granted by an immigration official or otherwise violated the terms of a U.S. visa?

What was your response to this question? Yes or No.

Thanks,
Siraj

[raghvi]

Hi nanuu,

I am also in the same boat. In DS160, there is a question like

Have you ever been unlawfully present, overstayed the amount of time granted by an immigration official or otherwise violated the terms of a U.S. visa?

What was your response to this question? Yes or No.

Thanks,
Siraj

If one overstayed I-94 (with or without extension filed) and if extension was denied or one left US while it was pending, the answer would be YES.

This is my opinion not legal advice.

[mohameds]

L2 to H4 stamping DS160 question

Hi Raghvi,

This is my situation.

I was on L1B with employer A till 12/31/2015, and did COS of L1 to H1 through employer B and started working on H1 since 1/1/2016. During, this COS, employer B did not file my spouse's H4, and she was staying with me till 1/20/2016, but her L2 I-94 was valid till 9/2016. In the mean time, employer C did H1 transfer for me and petition approved till 9/2017. I am planning to send my spouse for a visa interview in US consulate. While filing DS160 form, there is a question as below,

Have you ever been unlawfully present, overstayed the amount of time granted by an immigration official or otherwise violated the terms of a U.S. visa?

I am confused what should my spouse respond to this?

Thanks,
Siraj

[raghvi]

Hi Raghvi,

This is my situation.

I was on L1B with employer A till 12/31/2015, and did COS of L1 to H1 through employer B and started working on H1 since 1/1/2016. During, this COS, employer B did not file my spouse's H4, and she was staying with me till 1/20/2016, but her L2 I-94 was valid till 9/2016. In the mean time, employer C did H1 transfer for me and petition approved till 9/2017. I am planning to send my spouse for a visa interview in US consulate. While filing DS160 form, there is a question as below,

Have you ever been unlawfully present, overstayed the amount of time granted by an immigration official or otherwise violated the terms of a U.S. visa?

I am confused what should my spouse respond to this?

Thanks,
Siraj

Either B or you should have filed L2 to H4 for your spouse. Your spouse was not in a valid status from the time you moved to H1 status, which seems around 100+ Days now. I think you should answer YES to the question and explain to the officer what transpired, if asked about it.

This is my opinion not legal advice.

[mohameds]

Either B or you should have filed L2 to H4 for your spouse. Your spouse was not in a valid status from the time you moved to H1 status, which seems around 100+ Days now. I think you should answer YES to the question and explain to the officer what transpired, if asked about it.

This is my opinion not legal advice.

Thank you Raghvi for your input on this.

To whom so, it may help, there was no question on overstay when my spouse appeared for H4 stamping. We did mention her overstay reason in DS160, yes we did mention, it is always good to present form with truthful information.