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

3 min read
H-4 Dependents

It is essential 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 Murthy Law Firm routinely receives calls from dependent spouses, such as those admitted in H-4 Dependents or L-2 status, who have remained in the United States beyond the expiration date of their respective I-94 cards. This is due to 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.

The Importance of I-94 Expiration Dates for Nonimmigrants | H-4 Dependents

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). The I-94 expiration date generally indicates the length of time a person is permitted to stay in the United States. A U.S. Citizenship and Immigration Services (USCIS) officer issues an I-94 card. Which is attached to an I-797 approval notice and typically includes an extension approval. To nonimmigrants applying from within the United States. As a result, individuals should either make a timely request to change or extend their status within the United States or make plans to leave the country before the I-94 expires.

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

As each family member generally will have their 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 dependents’ family members. Rather, a dependent typically must apply to extend/change nonimmigrant status (form I-539). If more than one dependent will be applying for an H-4 extension. A separate supplemental form I-539A should be included for each additional dependent.

Common Mistake: Failure to File for Family Members

It is simple to understand how this overstay could occur given the typical means by which a dependent enters the United States. A visa foil (commonly referred to as a “stamp”), such as an H-4 or L-2. Typically allows a dependent spouse or child to enter during the principal spouse’s validity period. It’s possible that the dependent will not be aware that the USCIS requires an application for an extension of status.

[Registration Period for FY24 H1B Lottery Extended Through March 20th]

With the H-4 category, the issue of a dependent overstaying the I-94 expiration date is particularly prevalent. This is due to the possibility that an H1B worker will frequently benefit from H1B amendments and/or changes to employer petitions. An extension of status may be granted for each such petition. It is easy to forget to extend the I-94 status of the dependent spouse now that the status of the principal spouse has been extended.

Implications of Failure to Extend I-94

Even if an oversight was made, allowing the I-94 card to expire can have serious implications. The individual will typically begin accumulating unlawful presence. As soon as the I-94 expires unless an application or petition to extend status is filed promptly. This immediately renders the nonimmigrant visa foil used for admission null and void upon departure from the United States. In addition, if a person has been in the United States illegally for at least 180 days. They will be barred from returning to the country for three years. If they have been in the country illegally for 365 days or more, they will be barred for ten years.

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