H1 visa extension and H4 restamping

[anupkumarv]

Hello,

I am now in the US with a H1 visa and my visa expires on September 30.
My family visited me with H4 for two months and now have gone back to India.

My company has filed my extension and have not heard back. I am planning to go back to India on Aug 21. My initial plan was to get the approval, go back to India and go for re-stamping my visa along with my family. But I am not sure if I can get the approval before that. I have few questions which needs some answers before deciding over any plans.

1. Our attorney said that I can stay in the US even if my H1 has expired for 180 days. Will I be able to go to India before my visa expires on Sept 30 and come back during this 180 day period after my H1 has expired stating that I have applied for an extension?

2. Supposing I go to India and come back before Sept 30, and after that if my Visa extension is approved, can my family file for H4 re-stamping without me using my approved extension? (in this time...my passport will not be re-stamped)?

I am a bit confused about what I should be doing. Could some one help?

Thanks,
Anup

[shervin143]

1. Our attorney said that I can stay in the US even if my H1 has expired for 180 days. Will I be able to go to India before my visa expires on Sept 30 and come back during this 180 day period after my H1 has expired stating that I have applied for an extension?
>>> No. You will need a valid H1B visa and H1B petition to return after Sept 30th. You are allowed to stay and work in U.S after the H1B petition expiry date (without leaving the country) provided the H1B extension is filed prior to your I-94 expiry date (Which applies in your case). However, waiting for 180 days without getting an approval is very risky. If the extension gets denied, your stay in U.S post your I-94 expiry date will be treated as illegal stay. One option is to upgrade your case to premium and get the response within 15 days.

2. Supposing I go to India and come back before Sept 30, and after that if my Visa extension is approved,
>>> You are not suppose to leave the country when the extension of stay is pending. If you do that, your extension will most likely get denied (or might receive an RFE) since you left the country and H1B might get approved for consular process (without a new I-94) forcing you to leave U.S immediately again before Sept 30 and return back only after getting the visa stamped).

can my family file for H4 re-stamping without me using my approved extension? (in this time...my passport will not be re-stamped)?
>>> That is not a problem. Your family can get their H4 visas stamped based on your extended H1B approval notice. Your valid visa is not required to get their H4 stamped.

I am a bit confused about what I should be doing. Could some one help?
>>> Wait for the extension to get approved and then leave the country. Or, upgrade the case to premium, get the result within 15 days and then leave. Not advisable to leave when EOS is pending. If you had to do that, then wait in India until the petition gets approved, get the visa stamped and return back after Sept 30.