H4 child status expired

[kkveerna]

Hello,

I am working on H1 Visa, my wife has H4 EAD, both are valid until July 2022, my previous visa was expired on 8 July 2019, at which it was renewed for 3 years. While applying for extension for H1, I myself applied for extension of status for my wife H4 and EAD which both of them were approved until 2022 July. I did not know that I need to include my children as supplement for my wife I 539. As my kids passports are going to expire in Nov 2021 I applied to passport renewal with Indian consulate, that’s when I understood that my kids were out of status for almost 2 years. I consulted immigration attorney, as H4 processing time is about 10- 13 months attorneys suggested to leave USA and get VISA stamping, as my kids are below 18 years of age they would not accrue unlawful presence. We also discussed about future VISA renewals and adjustment of status with I 485.

I am still hesitant to travel and thinking I should apply I 539 with Nunc Pro Tunc option to make things clean for future. Lawyers feel as it is close to 2 years and the wait time is more than 9 months it may be best to travel and get VISA stamping.

given the situation do I still try I 539 with NPT option, any ideas or similar success stories of adjustment of status going backward?

thanks
Kiran

[newacct]

Leaving and getting a new visa and coming back should not affect a future Adjustment of Status in an employment-based category, because INA 245(k) says that for employment-based AOS they just need to have had less than 180 days of out of status or illegal employment since the most recent admission, so going abroad and coming back with a visa resets it. Having been out of status does prevent AOS in non-Immediate-Relative family-based categories however.

[kkveerna]

Thank you for your time to read and respond on my question, what is understood is going out of USA and coming back may be preferable than applying for I 539 with NPT option? I was thinking i May have to apply within USA and clear the overstay. Would this over stay be an issue if my children reach 18+ age either for future VISA issue or the current VISA stamp if we exit the country?