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vikidisi
03-02-2016, 02:40 PM
I also suggest talking to a lawyer that is not affiliated with the employer to get an unbiased view.

mahendrasingh
03-02-2016, 03:07 PM
thanks - we have checked with another lawyer and got the same opinion to go back to India and get stamping done there.

mahendrasingh
03-06-2016, 06:50 PM
Hi
I am asking question on behalf of my friend who is going through turbulent time and hope someone ( JoeF, I am counting on you !) is able to provide the guidance.

Background : My friend has been working on H1 visa and his I140 is already approved. His current H1 visa was due to expire in Sep 2015 and an extension was filed in Jun 2015 by his company. His project completed in Sep 2015 and he moved to a new client (through the same employer) in Oct 2015.

In Jan 2015, while waiting for H1 extension approval, my friend had to travel back to India urgently (literally the same day) due to some family emergency, leaving his wife ( H4) and daughter ( US citizen) to stay in US.

At this time both his H1 extension and his wife's H4 extension request were in progress.

Now since he had to go to India while his H1 extension was not approved, his company's lawyer filed for a new H1 extension (premium processing) through Consular processing (because he went back to India). He got an RFE (expected) due to other H1 extension application filed in Sep 2015 which the lawyers withdrew. Finally, his H1 extension is approved and he is scheduled for visa appointment on 14th March 2016.

As if was not complicated enough, recently his wife's H4 extension application has been denied. On USCIS we can see the following message :
On March 1, 2016, we denied your Form I-539, Application to Extend or Change Nonimmigrant Status, Receipt Number EAC NNNNNNN. We mailed you a decision notice that explains why we denied your case and your options. Please follow the instructions in the notice.

This means she is currently out of status. Here is what I need guidance on understanding the options :
1. How long she can stay in US - I have seen option like leave immediately, 10 days, 30 days etc.

Right now the expectation is that her husband would get the visa stamped and shall be able to fly to US immediately after that ( best case 20th March assuming it would take a couple of days to get the stamped passport ).

2. Can she file an appeal against the extension denial while being in US? I heard that appeal can only be filed when his husband has valid I-94, which he will get on his entry to US.

3. Is the best course for her to fly back to India immediately and get the visa stamped based on her husband H1 extension approval ( assuming successful stamping on 14th March) ? I am also assuming that she will not get the same visa appointment as her husband if they file the visa application right now, so will have to go for visa stamping separately.

As you can see, it has got very complicated and hence need guidance on the right way to address this situation. We have a risk of her being out of status which may create issues for her application later.

Thanks in advance for your guidance.

wetfeet80
03-07-2016, 03:52 PM
Hello Mahendra, I think it will be easier if your wife too get her PP stamped by going outside the country. Though it is better if you check with your company lawyer on the best solutio for this issue.

mahendrasingh
03-07-2016, 10:46 PM
Thanks - this seems to be the best option available to have my friend's wife fly to India and get stamping there...