H4 out of status

[sankshe]

Hi Everyone,

My wife entered USA on H4 and applied for H1B visa in 2017 with a desi consultancy. Her H1B was approved but due to some reason my employer only received a reopened notice from USCIS and not the approval notice. We waited for 2 months and then applied for H4 EAD. After 3 months she received an RFE on her H4 EAD stating she is currently on H1B status. We checked with the employer but he says his company is closed and he cannot re request the Approval notice. My H4 EAD attorney suggested to request withdrawal of H1B and than submit the RFE. My employer agreed to that and he initiated the cancellation. This took approximately 2 months and than we submitted the H4 EAD RFE stating unaware about the H1B status. After 3 weeks we got a notice that her H4 EAD is denied since she we were not able to prove it that she is on H4. Now my attorney has suggested her to leave the country and get H4 re-stamped by visiting a consulate in India.

My worry is that since its already been more than 6 months now since her H1B was approved which means she is out of status from 6 months.
Or is it out of status only after her H4 EAD denial?

Will it cause her a bar from entering USA for 3 years?
Or denial of her new H4 in this case when she visits a consulate?

Appreciate any help

Thanks

[newacct]

Hi Everyone,

My wife entered USA on H4 and applied for H1B visa in 2017 with a desi consultancy. Her H1B was approved but due to some reason my employer only received a reopened notice from USCIS and not the approval notice. We waited for 2 months and then applied for H4 EAD. After 3 months she received an RFE on her H4 EAD stating she is currently on H1B status. We checked with the employer but he says his company is closed and he cannot re request the Approval notice. My H4 EAD attorney suggested to request withdrawal of H1B and than submit the RFE. My employer agreed to that and he initiated the cancellation. This took approximately 2 months and than we submitted the H4 EAD RFE stating unaware about the H1B status. After 3 weeks we got a notice that her H4 EAD is denied since she we were not able to prove it that she is on H4. Now my attorney has suggested her to leave the country and get H4 re-stamped by visiting a consulate in India.

My worry is that since its already been more than 6 months now since her H1B was approved which means she is out of status from 6 months.
Or is it out of status only after her H4 EAD denial?

Will it cause her a bar from entering USA for 3 years?
Or denial of her new H4 in this case when she visits a consulate?

Appreciate any help

Thanks

Being "out of status" is not what matters. It's "unlawful presence" that matters for the 3-year/10-year 9B ban. To start accruing "unlawful presence", she would usually have to stay past the date on her I-94. Since (supposedly) she had a Change of Status approved, she would have received a new I-94 with the approval notice, with her new status (H-1b) and the date she was admitted until. From that point on, that was the I-94 that governed her stay. Now, she didn't know about the new status and never worked for the company she was supposed to be on H-1b for, and therefore she may have violated her H1b status, but violation of status does not cause "unlawful presence" to start accruing. Assuming the I-94 (which she didn't know about but which presumably exists) hasn't expired, she probably haven't started accruing any "unlawful presence".

(There's another way "unlawful presence" can start accruing, and that's if she applies for some benefit to USCIS and then they deny it along with a determination that she was out of status; if that happens, "unlawful presence" starts accruing as of that denial. She did apply for an EAD, and she was denied, but I am not sure whether there was any determination about her being out of H-1b status or not as part of that denial. In any case, it probably hasn't been 180 days since the denial.)

So she will not trigger a ban upon leaving the US. But that doesn't necessarily mean she will get a visa.

[sankshe]

Thank you for the response.
I spoke with my attorney this week. Even they said her out of status would start after the denial of H4 EAD. They also said she doesn't need to travel to India for stamping and they will be filing a NUNC PRO TUNC along with my H1 extension to reinstate the H4 visa since her H4 visa i-94 is valid until end of this year. Please let me know if filling NUNC PRO TUNC is valid in this case.

Thanks

[newacct]

Thank you for the response.
I spoke with my attorney this week. Even they said her out of status would start after the denial of H4 EAD. They also said she doesn't need to travel to India for stamping and they will be filing a NUNC PRO TUNC along with my H1 extension to reinstate the H4 visa since her H4 visa i-94 is valid until end of this year. Please let me know if filling NUNC PRO TUNC is valid in this case.

Thanks

They can always try to file but that doesn't mean USCIS will accept it. USCIS doesn't accept late filings unless there's a good reason. And if it isn't approved, you would have been accruing "unlawful presence" this whole time, since it wasn't a timely filing. And if you accrue 180 days of "unlawful presence" and then leave, you will have a ban.

[sankshe]

They can always try to file but that doesn't mean USCIS will accept it. USCIS doesn't accept late filings unless there's a good reason. And if it isn't approved, you would have been accruing "unlawful presence" this whole time, since it wasn't a timely filing. And if you accrue 180 days of "unlawful presence" and then leave, you will have a ban.

Thanks again for your response. What did you mean by late filling? This week we initiated my H1B extension and my Wife H4 with Nonc Pro Tunc in premium processing.

[newacct]

Thanks again for your response. What did you mean by late filling? This week we initiated my H1B extension and my Wife H4 with Nonc Pro Tunc in premium processing.

"Late" as in it was filed after the status ended.