I just realized that we neglected to file my spouse’s H-4 extension when my employer extended by H1B status. Her I-94 has since expired. Should she leave the U.S. now? Will she be able to come back?

Answer

If it has been 180 days or less since the date her I-94 expired, the best solution may be to leave the U.S. and apply for a new visa (being sure to disclose the overstay in the DS-160). If it’s been more than180 days, her departure will trigger a 3- or 10-year bar. In that case, she should consult with an immigration attorney to see if she may be a good candidate to apply for a nunc pro tunc (i.e., late-filed) extension of her H-4 status without leaving the U.S. (01.Oct.2024)

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