H4 visa holder entering country after vacation with 15 days remaining for i94 expiry

[dineshjyrm]

Hi,

I'm currently working in US with a H1B visa expiring on 14th Feb 2015. My Son is my dependent and his H4 visa expiry is also on 14th Feb 2015. My visa extension (along with my son's visa extension) was filed on 20th Nov 2014 and I've received a RFE on the same. My son's case in the USCIS website though has a status of "Case received". My spouse is also a H1B visa holder and is currently on a vacation in India with my Son. They are returning on 30th Jan 2015.

With the above context I have the following questions

- Can my Son return along with my wife on 30th January? Will he have any trouble in getting past the port of entry officer?
- Since my Extension has been filed, I understand I can stay in US beyond 14th Feb 2015 also. Is this correct?
- Since my wife has a H1B visa already (please note my son or I weren't added as dependents while her petition was filed), can my son and I change our status to H4? What is the process to be followed?

Detailed responses would be helpful. Thank you.

Dinesh

[raghvi]

Hi,

I'm currently working in US with a H1B visa expiring on 14th Feb 2015. My Son is my dependent and his H4 visa expiry is also on 14th Feb 2015. My visa extension (along with my son's visa extension) was filed on 20th Nov 2014 and I've received a RFE on the same. My son's case in the USCIS website though has a status of "Case received". My spouse is also a H1B visa holder and is currently on a vacation in India with my Son. They are returning on 30th Jan 2015.

With the above context I have the following questions

- Can my Son return along with my wife on 30th January? Will he have any trouble in getting past the port of entry officer?
- Since my Extension has been filed, I understand I can stay in US beyond 14th Feb 2015 also. Is this correct?
- Since my wife has a H1B visa already (please note my son or I weren't added as dependents while her petition was filed), can my son and I change our status to H4? What is the process to be followed?

Detailed responses would be helpful. Thank you.

Dinesh

2 Months already, I think you should upgrade to premium asap in order to get a decision before I-94 expiry.

1. As long as he returns before his visa expiry it will be fine. He would most likely be given I-94 only till visa expiry, in that case, as soon as he reaches US, file for his extension using form I539, based upon your spouse's H1 petition.
2. You can stay max upto 240 days, but if you seeing less chances of H1 extension approval (because of no client letter, less employees etc....), then I would suggest you file for a H1 to h4 before your I-94 expiry and stop working as soon as the COS from h1 to H4 is filed.
3. Yes you can using form I539 for yourself and your kid. Remember, you should not work upon filing a COS from H1 to H4 with an immediate date.

This is my opinion not legal advice.

[dineshjyrm]

2 Months already, I think you should upgrade to premium asap in order to get a decision before I-94 expiry.

1. As long as he returns before his visa expiry it will be fine. He would most likely be given I-94 only till visa expiry, in that case, as soon as he reaches US, file for his extension using form I539, based upon your spouse's H1 petition.
2. You can stay max upto 240 days, but if you seeing less chances of H1 extension approval (because of no client letter, less employees etc....), then I would suggest you file for a H1 to h4 before your I-94 expiry and stop working as soon as the COS from h1 to H4 is filed.
3. Yes you can using form I539 for yourself and your kid. Remember, you should not work upon filing a COS from H1 to H4 with an immediate date.

This is my opinion not legal advice.

Thanks for your quick response.

I finally got a copy of the RFE and its owing to an employer-employee relationship not having been established clearly. Since I'm working for a large organization with paper work in good shape, I feel the RFE can be responded satisfactorily. Earlier the SOW that was furnished was a bridge SOW (this was active while the final one was being finalized - its final now) which my organizations legal team feels might have been the reason.

I'll initiate the I539 for my son as required. Thank you very much for your response.

Dinesh