Out of Status - Filing of H1 extension missed by oversight

[jnahal]

Hello Friends,

My wife’s employer missed filing for her H1 extension and her H1 validity was until 8/26/2021 (she does have her i140 approved), its almost 30 days now since she will be out of status.
I wanted to check, if moving her to my H4 & then EAD is a better option compared to her employer now filing for her H1b extension in premium.
Pretty panicked right now, as entire family will be jeopardized by this situation.
Can you please suggest and guide, how bad it will be and what are our available options.

Thanks,
Jasmeet

[newacct]

If she files for Change of Status to H4 now, it would still be a late filing since she is already out of status. A late Change of Status does not protect against accrual of unlawful presence, and Change of Status and EAD take many months to adjudicate, and by the time it is decided, if it is denied (as is likely for late filings), it would likely be over 180 days of unlawful presence and leaving the US then would trigger a ban.

On the other hand, although the company's H1b extension of stay application is also late, at least 1) they can argue that it was late due to their mistake, and 2) if they can apply for it in premium processing, then the decision will be made quickly, so that even if it's denied, it will still be well under 180 days of unlawful presence, and can leave the US without triggering a ban, get a visa, and come back.

[rkk09]

Hi,
My recommendation would be leave the country as soon as possible and get H4 visa at consulate/ embassy then come back and apply for H4 EAD separately.
What my concern is,
If you file H1B ext now, We dont know, how it gets adjudicated. On another hand , you can not even file for H4 change of status as you dont have I-94 validity at present. It clearly shows, it may get deny. Instead of filing petition and waiting for the result, better leave the country and get H4 visa stamped.
One more option is, you may try for H1B transfer at this moment. What my argument here is, If you consider for H1B transfer, you may consider for these days as grace period.
All the best.
Thanks

[jnahal]

Thanks for replying members. Truly appreciate newacct. and @rkk09
I am leaning towards leaving country and going for H4 route for my spouse.
Are there any chances that her H4 may be denied and she may be stranded, considering she will have to share details on visa overstay in her Ds-160 and might be grilled by the consulate

[rkk09]

Hi,
Please see my response below.
Question: Are there any chances that her H4 may be denied and she may be stranded, considering she will have to share details on visa overstay in her Ds-160 and might be grilled by the consulate?
Answer: I feel the overstay would be considered as grace period to leave the country. One thing you will need to make sure is, leave country as soon as you can. With that, I am sure, you will not have any hard time to obtain H4 visa at consulate. But, Officer may raise the question about these. Just have a valid reason to satisfy them.
All the best.
Thanks

[jnahal]

rkk09 - Thanks !

Upon consultation with ****** Law, we were suggested with a way to do late filing, while staying here in US called NPT.
Does anyone have any experiences they can share on same.