COS L2 to H4 Denied Minor Child (Age 5)

[jammygaurav]

I was on L1B status from March 06th 2013 ? April 20th 2018 for a max period of 5 Years . My daughter, was on L2 Visa as my dependent with a I94 expiration date of April 20th 2018 .

My spouse is on H1B Visa valid till May 2021 . Since my daughter?s L2 status was expiring in April 2018 and would continue to live with her mother , we filed a change of status (I-539) for our daughter from L2 to H4 in February 2018 .

Today, we received a response from USCIS , where the I539 petition was denied . Since her L2 status expired on April 20th 2018 , she has stayed > 180 days since April 2018 . Could you please help us with the options we have to get her in status to continue living with her mother who is in USA. She has a valid visa for Canada (obtained with my Canada work permit visa for a dependent) and can travel to Canada for stamping .

1) Can she travel to Canada to get a H4 stamping from US consulate in Canada (Toronto) since she is out of status but is a minor (Age 5) .
2) Does she qualify for the Drop box processing or needs a scheduled interview ?
3) Does she need to travel to India to get her H4 Stamping ?
4) Does she get a 3 year ban for overstaying in USA ?
5) Can we appeal/motion the decision ?
6) What is the best course of action for us to take.

[dhsa4]

I was on L1B status from March 06th 2013 ? April 20th 2018 for a max period of 5 Years . My daughter, was on L2 Visa as my dependent with a I94 expiration date of April 20th 2018 .

My spouse is on H1B Visa valid till May 2021 . Since my daughter?s L2 status was expiring in April 2018 and would continue to live with her mother , we filed a change of status (I-539) for our daughter from L2 to H4 in February 2018 .

Today, we received a response from USCIS , where the I539 petition was denied . Since her L2 status expired on April 20th 2018 , she has stayed > 180 days since April 2018 . Could you please help us with the options we have to get her in status to continue living with her mother who is in USA. She has a valid visa for Canada (obtained with my Canada work permit visa for a dependent) and can travel to Canada for stamping .

1) Can she travel to Canada to get a H4 stamping from US consulate in Canada (Toronto) since she is out of status but is a minor (Age 5) .
2) Does she qualify for the Drop box processing or needs a scheduled interview ?
3) Does she need to travel to India to get her H4 Stamping ?
4) Does she get a 3 year ban for overstaying in USA ?
5) Can we appeal/motion the decision ?
6) What is the best course of action for us to take.

Hi,
Sorry to hear this. Its my personal opinion based on my experience but don't consider it as legal advice.
1. Most likely in denial cases, 3rd country won't process the application, its better to visit native country
3. Yes
4. Most likely "NO" as candidate was residing based on the pending I-539, which is a valid, legal process
5. Yes, but it may take another 3-4 months
Best of luck.

[newacct]

I was on L1B status from March 06th 2013 ? April 20th 2018 for a max period of 5 Years . My daughter, was on L2 Visa as my dependent with a I94 expiration date of April 20th 2018 .

My spouse is on H1B Visa valid till May 2021 . Since my daughter?s L2 status was expiring in April 2018 and would continue to live with her mother , we filed a change of status (I-539) for our daughter from L2 to H4 in February 2018 .

Today, we received a response from USCIS , where the I539 petition was denied . Since her L2 status expired on April 20th 2018 , she has stayed > 180 days since April 2018 . Could you please help us with the options we have to get her in status to continue living with her mother who is in USA. She has a valid visa for Canada (obtained with my Canada work permit visa for a dependent) and can travel to Canada for stamping .

1) Can she travel to Canada to get a H4 stamping from US consulate in Canada (Toronto) since she is out of status but is a minor (Age 5) .
2) Does she qualify for the Drop box processing or needs a scheduled interview ?
3) Does she need to travel to India to get her H4 Stamping ?
4) Does she get a 3 year ban for overstaying in USA ?
5) Can we appeal/motion the decision ?
6) What is the best course of action for us to take.

3. No. First, one does not accrue "unlawful presence" for the purposes of the 9B ban while under the age of 18. So she would not have "unlawful presence" even if she keeps on overstaying. (Also, someone does not accrue "unlawful presence" while a timely-filed, non-frivolous EOS/COS was pending, even if it is ultimately denied or abandoned; though it is not necessary to bring this up since she is under 18.)
5. It depends on why it was denied. If it was denied in error, then yes, you can file a Motion to Reconsider and/or Motion to Reopen.
1, 3. Assuming the denial is not reopened, I believe that she may have to go back to India, not Canada, to get a US visa. This is because INA 222(g) says that someone who stayed past the period on their I-94, and stayed past the period of a pending timely-filed, non-frivolous EOS/COS (including if she was still in the US when the EOS was denied, and her I-94 is already expired), the visa she used to enter the US is automatically voided, and she can only apply for US visas in her country of nationality from now on.