H4 Extension ( I-539 petition pending)

[vijayatmu]

Hello,

My spouse I-94 expired on Aug 15 2009. We realized her out-of-status after 2.5 months. We since then filed for a I-539 (nunc-pro-tunc) in Oct '09. The application is still pending. We have a receipt (Nov '09) that USCIS has recived the application. The primary (I-797 ) is approved and is staying legally.

I just have few questions on our case for different situations that we foresee.

1. If application is still pending with USCIS by the 180 day period, should she leave US by 180 day time period to have her passport stamped ?

2. If we waited over 180 days to receive the final I-539 status. And her application gets rejected after that. Is it viewed as she was out-of-status for the entire 180 days period? Will she likely get a 3 year ban from entering US then?

3. Can lawyers based on their experience kindly post how many days it takes approximately to get a final approval or rejection from USCIS for the California Service Center (from RECEIPT date).

Appreicate your reponse to my post. It is going to clear lot of unknowns for us.

Thank you.

[shervin143]

Answers below.

Hello,

My spouse I-94 expired on Aug 15 2009. We realized her out-of-status after 2.5 months. We since then filed for a I-539 (nunc-pro-tunc) in Oct '09. The application is still pending. We have a receipt (Nov '09) that USCIS has recived the application. The primary (I-797 ) is approved and is staying legally.

I just have few questions on our case for different situations that we foresee.

1. If application is still pending with USCIS by the 180 day period, should she leave US by 180 day time period to have her passport stamped ?
>>> My suggestion is not to wait till 180 days. Leave immediately, get the visa stamped and re-enter. If the application gets rejected, it will cause issues later for staying illegally for such a long time.


2. If we waited over 180 days to receive the final I-539 status. And her application gets rejected after that. Is it viewed as she was out-of-status for the entire 180 days period? Will she likely get a 3 year ban from entering US then?
>>> 180 days doesn't count from the receipt date of I-539. It actually counts from the date of I-94 expiry. So if the application gets rejected, then her illegal stay counts from Aug 16th 2009. There is a 3 year ban for staying illegal for 180 days and a 10 year ban for staying illegal for 365 or more days.


3. Can lawyers based on their experience kindly post how many days it takes approximately to get a final approval or rejection from USCIS for the California Service Center (from RECEIPT date).
>>> It usually takes 2-3 months (I am not a lawyer).

Appreicate your reponse to my post. It is going to clear lot of unknowns for us.

Thank you.

[vijayatmu]

thank you for your response. It has been 2 months as of Jan 12, 2010 since the receipt of the I-539 application with USCIS. The case is still under initial review with USCIS.

Under normal circumstance I would have arranged for my souse travel to get her passport stamped. We just have a 1.5 month old baby. The baby hasn't received most of her immunization yet and I am afraid to send her in the flight.

Between, can I ask two more question.

1. If I-539 extension (nunc-pro-tunc) is filed after I-94 expiry and if we decide on stepping outside US to get a new H4 stamping, should we withdraw the I-539 extension that is filed already (for which status is still pending).

2. Secondly, if I-539 is filed after one's I-94 expried, what is the most number of days one can stay in US waiting for a response on your application?

Sincerly appreciate all your repsonse to my queries.

Vijay

[shervin143]

Answers below.

thank you for your response. It has been 2 months as of Jan 12, 2010 since the receipt of the I-539 application with USCIS. The case is still under initial review with USCIS.

Under normal circumstance I would have arranged for my souse travel to get her passport stamped. We just have a 1.5 month old baby. The baby hasn't received most of her immunization yet and I am afraid to send her in the flight.

Between, can I ask two more question.

1. If I-539 extension (nunc-pro-tunc) is filed after I-94 expiry and if we decide on stepping outside US to get a new H4 stamping, should we withdraw the I-539 extension that is filed already (for which status is still pending).
>>> Not necessary. If you step out of the country, then the extension of stay will get denied. If you receive the extension, then make sure you return that I-94 that comes with the extension and the I-94 that you will receive at the POE together to the airport officials when you leave the country again.

You also have the option of withdrawing the application for EOS.

2. Secondly, if I-539 is filed after one's I-94 expried, what is the most number of days one can stay in US waiting for a response on your application?
>>> You can stay until the decision is made. If it gets approved, then you are all good. If not, then your illegal stay counts from the date of your actual I-94 expiry which will cause issues when you apply for extension or visa later.

Sincerly appreciate all your repsonse to my queries.

Vijay

[kak6276]

H4 Extension ( I-539 petition pending)

@Vijayatmu
Can you please share your experience on this. Did you leave the country or your I539 was approved.

[srisan]

Hi Vijayatmu and kak6276,

Please let me know your updates. Am in the same situation, a late filing has been done for I 539 and as assuming would take 2-3 mos for a decision. Should I let my wife go back before 180 days and come with a fresh stamping?