H1B Extension approved, H4 not filed and I-94 expired

[rizzu1990]

H1B extension approved two days before my I-94 expiry. However my company missed to file H4 extension and her I94 expired last sunday (September 15). There is a planned surgery going to be scheduled in coming days. I have the following questions in mind seeking answers.

1. How long she can legally stay in the US and what is the next immediate action that we need to make ?
2. Can we approach local CBP office to get her I94 extended ?
3. Can we file I-539 now ?
4. Is there a option to file the H4 extension back dated ?
5. Is she has to travel back to home country and get her stamping done ?


Please help!

[pm87]

Hello

We had faced a similar situation 2 years ago, with some differences. So I would advice based on what we faced and hope that applies to your case. The best advice can be taken by ****** Law Firm via phone. They charge $15-$250 for 20 minutes but give the best and on-point advice.

Anyways, my wife's H4 and I-94 both had expired and H4 extension was not filed with my H1-B. She was considered "out of status" from that day onward. You have 180 days TOTAL to remain "out of status" in all your years COMBINED in USA, before they stop you from re-entering. Unless, you have a serious reason, like medical condition, pregnancy etc., the only option that worked was to send her back and have her come back with new stamping and I-94.
I-539 Change of Status can be filed only if you are on a valid visa. So, in this case, if her visa is already expired, most likely you cannot file I-539.
Extensions cannot be filed backdated.

I have personally never known anyone trying the CBP route, so I cannot comment.

Good luck and I would repeat, call ****** and do not accumulate "out of status" days.

Thanks

PM