H1B Status Extension Does Not Extend Status of H-4 Dependents in the U.S.

The Murthy Law Firm routinely receives calls from dependent spouses, such as those admitted in H-4 or L-2 status, who have remained in the United States beyond the expiration date of their respective I-94 cards, under the mistaken belief that an extension of the principal’s status is all that is required for them to maintain their status in the U.S. It is important to understand that, generally speaking, each nonimmigrant in the United States has a separate I-94 card, and the extension of a principal spouse’s status typically does not serve to extend the status of a dependent spouse or child.

The Importance of I-94 Expiration Dates for Nonimmigrants

The I-94 expiration date generally indicates the length of time a person is permitted to stay in the U.S. For nonimmigrants who enter the United States, the I-94 expires based on the U.S. Customs and Border Protection (CBP) officer issuing the online I-94 card and stamping the passport at the U.S. port of entry (POE). For nonimmigrants applying to change or extend status from within the United States, a U.S. Citizenship and Immigration Services (USCIS) officer issues an I-94 card, attached to the bottom of an I-797 approval notice, generally with an extension approval. Therefore, individuals should plan to depart the United States before the I-94 expires, or make a timely request to change or extend status from within the U.S.

Extension or Change of Status: Don’t Forget Derivative Family Members

As each family member generally will have his/her own I-94 card, the status of each family member must be separately maintained, even if that status is dependent on a spouse or parent. Extending the status of the principal H1B worker, for example, does not automatically extend the status of H-4 dependent family members. Rather, a dependent typically must file an application to extend / change nonimmigrant status (form I-539). Multiple dependents may be included in a single I-539 application, however each family member should still obtain a separate I-94 card that indicates the expiration date of that individual’s status.

Common Mistake: Failure to File for Family Members

Given the process by which a dependent typically enters the United States, it is easy to understand how this overstay may occur. A dependent spouse or child generally enters with a visa foil (commonly referred to as a “stamp”) (e.g., H-4, L-2), and is admitted through the validity period of the principal spouse. The dependent simply may not realize that an application for an extension of status with the USCIS is necessary.

The problem of a dependent overstaying the I-94 expiration date is especially common with the H-4 category. This is because an H1B worker may regularly be the beneficiary of H1B amendments and/or change of employer petitions. With each such petition, an extension of status may be granted. Given that the principal spouse’s status has been extended, it is very easy to forget to take any action to extend the dependent spouse’s I-94.

Implications of Failure to Extend I-94

Allowing the I-94 card to expire, even as the result of an oversight, can have serious implications. Unless there is a timely filed application or petition to extend status, the individual typically will begin accruing unlawful presence as soon as the I-94 expires. Upon departing the U.S., this immediately results in the person’s nonimmigrant visa foil used for admission to become void by operation of law. Moreover, if the person accumulates at least 180 days of unlawful presence in the U.S, that individual would become subject to a 3-year bar to reentry upon departing the U.S. The bar increases to 10 years if 365 days or more of unlawful presence are accrued.

Conclusion

If the I-94 has expired, it may be possible to resolve the matter by filing a nunc pro tunc (NPT) request, as discussed in the MurthyDotCom NewsBrief, Filing a Nunc Pro Tunc Request to Reinstate Status in the U.S. (01.Feb.2018). Or, if one becomes subject to a bar to reentry, a nonimmigrant waiver may be a possibility, as detailed in the MurthyDotCom NewsBrief, Obtaining a Waiver for a Nonimmigrant (29.Sep.2014). Needless to say, however, resolving this issue by departing the U.S. or filing an extension or change of status prior to the expiration date of the I-94 is a far safer option, whenever possible.

 

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Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.