Questions & Answers

What will happen to my EB-5 application if I overstayed my H-4 visa?

I applied for EB-5 and am currently waiting for my priority date to become current. Meanwhile, I obtained my H-4 visa and entered the U.S. in November of 2017 after my husband adjusted his status from F-1 OPT to H-1B last October. His I-797 approval is valid until October of 2020. The expiration on my H-4 visa was November 2018, but when I entered the border last year, I asked the CBP officer and he told me that I could stay in the U.S. until October of 2020. Recently I checked my I-94 and noticed that the expiration date was in November 2018. However, on the entry stamp in my passport, the “until” date is November of 2019. I am so confused. When do I have to leave the country? Am I overstaying my H-4 visa now? Do I need to extend my I-94? I do not want to impact my pending EB-5 case.

Answers

• Ying Lu

  Immigration Attorney

  Answered on January 29, 2019

  In some occasions, the visa validation period may only be 180 days or one year. This means that you can get in and out of the U.S. during that period of time without getting a new H-4 visa. After that time, if you continue to stay in the U.S., your status will be good until the end of the H-1B validation period of your husband. However, if you make international travel after your H-4 visa is expired, you just need to see the U.S. consulate in your home country and obtain a new H-4 visa. The problem you have here is the I-94 record. When you entered the U.S., they should have given you a period of stay until the expiration date of the H-1B status of your husband. So, you need to contact a local CBP office immediately to correct your I-94 record. Make sure you will bring the H-1B approval notice and the marriage certificate.

• Ed Beshara

  Immigration Attorney

  Answered on January 14, 2019

  You should consult with your EB-5 immigration attorney immediately. The USCBP office should be able to state whether you are still in legal status.

• Julia Roussinova

  Immigration Attorney

  Answered on January 7, 2019

  It is advisable to have an immigration attorney go with you to a CBP deferred inspection office to correct the I-94 record. Generally, your period of stay should be consistent with your spouse's underlying H-1B validity period.

• Fredrick W Voigtmann

  Immigration Attorney

  Answered on January 4, 2019

  If there is an issue with your I-94 that needs to be corrected, you can visit the deferred inspection office at the USCIS district office in your jurisdiction. You should call or check their website for office hours and services. If the stamp on your most recent entry is valid until November 2019, then you have not overstayed. In your situation, however, you should contact an experienced immigration attorney to review all of your immigration documents and advise you on the best course of action.

• BoBi Ahn

  Immigration Attorney

  Answered on January 3, 2019

  You many need to have your I-94 date clarified at deferred inspection if there is conflicting information between what was written on your passport and the I-94 online system.

• Marko Issever

  EB-5 Broker Dealer

  Answered on December 31, 2018

  From what you are explaining, it appears like you have an admission error that could easily be corrected. Your H-4 visa should have been tracking your husband's H-1B in the first place. You need to get your I-94 corrected as soon as possible so that you will not be categorized as a person who has overstayed a visa. Get in touch with the nearest CBP office or, better yet, work with your EB-5 attorney to correct the mistake.

• A Olusanjo Omoniyi

  Immigration Attorney

  Answered on December 28, 2018

  The notation of the date in your I-94 needs to be corrected. Typically, an H-4 is usually tied to its underlying H-1B. If your husband's H-1B is valid until October 2020, your H-4 should have tracked the same date. Advisably, contact your attorney for EB-5 to rectify the issue as soon as possible to prevent any unwitting over stay and other problems.

• Stephen Berman

  Immigration Attorney

  Answered on December 27, 2018

  You really need to see a lawyer. There are so many misconceptions here that a simple email will not suffice.

• Jinhee Wilde

  Immigration Attorney

  Answered on December 27, 2018

  As a H-4, your status normally tracks the main H-1B holder's duration. Why would the consulate give you only one year on the visa page? If the entry stamp shows the date until November 2019 clearly, then you should go with that. The I-94 online system is not always correct, and your lawyer could argue that the entry stamp controls.

• Lynne Feldman

  Immigration Attorney

  Answered on December 27, 2018

  Go to the nearest CBP office and see if you can get a corrected I-94 card to match your husband's approval. If your passport expired sooner than that, then there is nothing they can do and you will need to leave and re-enter with a new passport.

• Belma Chinchoy

  Immigration Attorney

  Answered on December 27, 2018

  An overstay will impact your admissibility and certainly your ability to adjust status. You need to fix your I-94 ASAP.

• Bernard P Wolfsdorf

  Immigration Attorney

  Answered on December 27, 2018

  If you have one day overstay or work without mission for one day, you may be ineligible to adjust status in the U.S. However, it appears you may merely have an admission error. This can be corrected at deferred inspection or by writing to CBP. Most people use lawyers to fix these and you may want to consider having a professional assistance. If you have overstayed there could be other consequences under section 222(G).

• Dale Schwartz

  Immigration Attorney

  Answered on December 27, 2018

  You need to go to the CBP office near you (usually at or near the biggest airport in your city) and take all your papers with you. They can correct the I-94.

• Salvatore Picataggio

  Immigration Attorney

  Answered on December 27, 2018

  I'd want to see all of the approval notices and stamps, and maybe even do a request to USCIS for documents, but your status should be tied to your husband's.

• Charles Foster

  Immigration Attorney

  Answered on December 27, 2018

  If you overstay your H-4 visa status for more than six months, you could be subject to a three-year bar; whether or not you overstay is determined by the date through which you were admitted. In your case, it appears that even though your H-4 non-immigrant visa had expired, you were admitted through November 2019. Thus, you would not have overstayed. The admission date on your departure record on Form I-94 is the determining date. Prior to November 2019, hopefully you will be able to apply for adjustment of status. If not, you'll have to apply for an extension of your H-4 status assuming you are eligible for same.