H4 Transfer without I-94

[sama2015]

Hi,
I am with employer A and my wife got I-94 when I joined employer A, it expired last year and my employer A renewed my H1-B before our I-94 expiry and they did not renew H4, they renewed only H1 intentionally. Employer A attorney told H4 status is valid and no need to renew it as my H1-B is valid till 2016. Now, I got job with employer B, I have valid H1-B which can be transferred but my wife doesn't have I-94 or valid I-797 as her H4 was not renewed by employer A. What are the options to transfer H4 to employer B.

1) If she travel now she gets I-94 till 2016 based on employer A's approved I-797 for my H1-B
2) Can employer B apply new H4 for her at this situation when she is in US?
3) if she travel to India now and I join employer B, can employer B file new H4 for my wife?

What are the options? Thank you!!

[raghvi]

Hi,
I am with employer A and my wife got I-94 when I joined employer A, it expired last year and my employer A renewed my H1-B before our I-94 expiry and they did not renew H4, they renewed only H1 intentionally. Employer A attorney told H4 status is valid and no need to renew it as my H1-B is valid till 2016. Now, I got job with employer B, I have valid H1-B which can be transferred but my wife doesn't have I-94 or valid I-797 as her H4 was not renewed by employer A. What are the options to transfer H4 to employer B.

1) If she travel now she gets I-94 till 2016 based on employer A's approved I-797 for my H1-B
2) Can employer B apply new H4 for her at this situation when she is in US?
3) if she travel to India now and I join employer B, can employer B file new H4 for my wife?

What are the options? Thank you!!

It was wrong for you to assume that H4 I-94 extension does not need to be filed when H1 extension is filed. If your spouse's I-94 has expired in the past then she is technically out of status and illegal in US from her I-94 expiry date, irrespective if you had a valid I-94 or not. The longer the out of status period the more problematic and it may potentially trigger a ban.

I would suggest you talk to an attorney so as to assess the damage already done and possibly file a Nunc Pro Tunc application for H4.

This is my opinion not legal advice.

[sama2015]

It was wrong for you to assume that H4 I-94 extension does not need to be filed when H1 extension is filed. If your spouse's I-94 has expired in the past then she is technically out of status and illegal in US from her I-94 expiry date, irrespective if you had a valid I-94 or not. The longer the out of status period the more problematic and it may potentially trigger a ban.

I would suggest you talk to an attorney so as to assess the damage already done and possibly file a Nunc Pro Tunc application for H4.

This is my opinion not legal advice.

I spoke to senior attorney with law firm, they told as per law my wife does not need an I-94 card to remain in lawful H-4 status. The document that establishes her status is actually my H-1b approval notice. - this is from my employer A's immigration Attorney. Could you please confirm if this is legal law?

[raghvi]

Every dependent individual has to have their own valid I-94. Your H1B approval notice, if has a valid I-94 establishes your status not your dependents. All your dependents extension should also have been filed along with your extension request.

http://www.uscis.gov/sites/default/files/USCIS/Resources/C1en.pdf

If your employer files a Form I-129, Petition for a Non-Immigrant Worker, to extend your stay and your spouse or unmarried children under age 21 also want to extend their stay, they need to file (paper based or e-file electronically) using Form I-539 , Application to Extend/Change Nonimmigrant Status . They can all be included on one I-539. It is best to file the I-129 and I-539 together so that they can be adjudicated about the same time. Remember, though, that they are separate applications. Therefore, you and your family members (and your employer) must follow the instructions and attach all supporting
documents with each application.


This is my opinion not legal advice.

[sama2015]

Every dependent individual has to have their own valid I-94. Your H1B approval notice, if has a valid I-94 establishes your status not your dependents. All your dependents extension should also have been filed along with your extension request.

http://www.uscis.gov/sites/default/files/USCIS/Resources/C1en.pdf

If your employer files a Form I-129, Petition for a Non-Immigrant Worker, to extend your stay and your spouse or unmarried children under age 21 also want to extend their stay, they need to file (paper based or e-file electronically) using Form I-539 , Application to Extend/Change Nonimmigrant Status . They can all be included on one I-539. It is best to file the I-129 and I-539 together so that they can be adjudicated about the same time. Remember, though, that they are separate applications. Therefore, you and your family members (and your employer) must follow the instructions and attach all supporting
documents with each application.


This is my opinion not legal advice.

Thank you! Yes, employer B is going to do Premium process for my H1-B transfer and also my wife's H-4. Also, they are going to request for adjustment as my wife's I-94 expired around 11 months ago.