Memphis immigration lawyer Ari Sauer provides news and information on US immigration law.
QUESTION: I filed my I-539 application to extend my H4 status. The application is not yet approved. I am supposed to go to India in a few weeks. What happens if my application is approved while I am outside the US?
THE IMMIGRATION ANSWER MAN – ARI SAUER: If you leave the US while your Form I-539 application to extend your H-4 status is pending, USCIS is supposed to treat it as if you abandoned your request for an extension of status and deny the application. In your situation, this would not negatively affect your status, your ability to obtain an H-4 visa in your passport or your ability to use an existing H-4 visa (if you have a current valid H-4 visa stamp in your passport).
But whether or not your I-539 application is approved before you leave the US, you will need to have a valid H-4 visa stamp in your passport to return to the US (unless you are a Canadian citizen). If you do not currently have a valid H-4 visa stamp in your passport, or if your current visa stamp will expire before your planned date of return to the US, then you will need to apply at the appropriate US consular post abroad to have a visa stamp put in your passport before you can return to the US in H-4 status. Of course, this assumes that your H-1B spouse (or parent) has already had their extension of H-1B status approved. Otherwise, you may have to wait for the H-1B beneficiary’s extension of status to be approved before you will be able to obtain a new H-4 visa.
I highly recommend consulting with me or another experienced immigration lawyer to make sure your travel plans will not result in unexpected delays returning to the US.
Please see my contact information below if you would like to schedule a consultation appointment with me to discuss your immigration issue.
Published 2/21/18 by attorney Ari Sauer.
By Ari Sauer.
Submit questions to Ari Sauer – The Immigration Answer Man by emailing your question to firstname.lastname@example.org. Questions submitted by email may be posted on this site, without personal information, unless the email specifically requests that we not use the question for this site. Due to the volume of questions received, not all questions submitted will be answered. Only general questions can be answered on this blog. For answers to specific questions about your situation, please schedule a consultation appointment with attorney Ari Sauer. Sending in a question by email or any other means does not create an attorney-client relationship. This is an advertisement. Ari Sauer is an attorney with the Siskind Susser law firm. On this blog, we answer questions as a service to our readers, but we cannot assume any liability related to reliance on anything herein, and responses to questions are not intended to establish an attorney-client relationship. Immigration laws and regulations are constantly changing and the rules stated may not be current or apply to your particular situation. Readers are cautioned to schedule a consultation with an immigration lawyer rather than relying on anything stated in this blog. This blog is not intended to substitute for a consultation with a qualified immigration law attorney. Ari Sauer is licensed to practice law through the states of Tennessee, New York, and New Jersey but is eligible to assist clients from throughout the US. Certification as an Immigration Specialist is not currently available in Tennessee, New York or New Jersey. The Siskind Susser law firm limits its practice strictly to immigration law, a Federal practice area, and we do not claim expertise in the laws of states other than where our attorneys are licensed. the opinions expressed here are those of Ari Sauer and do not necessarily reflect the opinions of the Siskind Susser law firm.
Hello Ari, My mother came to the US in November 2019 to spend some time with my fily after my father passed away in August 2019.
She was supposed to return back in March 2020 but Covid 19 happened. My mother is 87 years old and has diabetes and is on medication for diabetes, high Blood Pressure, and heart issues. She has a stent implant and also has respiratory issues hence is at high risk for covid 19. We applied for her extension of stay for the first time when her original I-94 expired on May 11th 2020 and then because it was difficult to travel all the way to India during the Pandemic and the fact that my mother needs help with her day to day activities, we applied for her 2nd extension on November 12th 2020 till May 11th 202. Both the I-539s are pending approval. Hence, I wanted to know what happens when her 6 months are over on May 11th 2021. Should she wait till we hear back from USCIS or leave before May 11th 2021 ? Currently, she has a valid 10 year US Tourist B2 visa stamped in her passport (expiring in October 2029). If my mother leaves before hearing back from the USCIS and the extension of stay is pending (either or both) them does she have to apply for her US Tourist visa again at the US consulate in India or can she travel back to the US on the current valid Tourist US visa that is there stamped on her Indian passport ?
Please guide! Thank you!
As long as the 2nd I-539 is filed before the end of the 6 months requested in the 1st I-539, an applicant remains in an authorized period of stay while the applications are pending. The term used for this is “bridging” the 2nd I-539 on the 1st I-539. If the I-539s still have not been adjudicated by the end of the 6 month period asked for in the 2nd I-539, it is possible to file a 3rd I-539 as long as it is filed before the end of the period asked for in the 2nd I-539, and so on. If the applicant leaves the US while the I-539 applications are pending, their current valid visa in their passport will remain valid for future use.
Hi Ari, I am planning to get my H1B and my wife’s H4 visa stamped from Canada in the coming weeks (27th Feb is our visa interview in Vancouver). I have my I797 approval notice with me but my wife’s I539 is still pending with USCIS. Now I do understand, that if she leaves the country, her extension request stands abandoned. But since I will be accompanying her to the visa interview along with my approved I797 notice, do you see any obstacle for her in getting the required H4 visa stamp on her passport before she re-enters the US? Thank you in advance for your time.
The fact that she abandoned her I-539 for extension of her H-4 status by leaving the US will not affect her ability to obtain an H-4 visa stamp in her passport together with you when you obtain your H-1B visa stamp.
Hello Ari. My mother asked for extension, and she is still pending. She asked to stay until Nov15, and since the date has passed she now prepares to leave the country immediately (her ticket is scheduled for the 26th). She’s never had issues with immigration, and hopes to return the country for my sister’s graduation in may. Is this still possible?
She will probably be fine using her vise to return to the US. But I will warn you that technically, since she asked for an extension until the 15th, and she did not file another application to request an extension beyond the 15th, and she left the US after the 15th, she could be considered to have overstayed her authorized period of stay and have invalidated her visa under INA Section 222(g). If so, CBP could refuse to admit her on her current visa. If that is the case, she would need to obtain a new visa to use to enter the US. This is a complicated subject, so she would probably benefit from consulting further with an experienced immigration lawyer about this so that she can make an informed decision on how to proceed.
Hi Ari. Thank you for your post! My I-539, Application To Extend/Change Nonimmigrant Status is pending. I am Canadian. Can I travel to Canada? or if I travel out of USA, even though Canadian still my application will be treated as abandoned?
Yes. Traveling to Canada can still cause a pending I-539 application to be abandoned.
I abandoned my COS h4 to F1on Aug 2018 by going to India and I would like to reapply COS from h4 to F1 again in April 2019.IS this make any impact on my case. My previous case is still saying like the “case was received”.
The fact that someone has abandoned their change of status to H-4 by traveling abroad should not itself make someone ineligible to apply for and receive an H-4 visa at the appropriate US consular post. So normally this shouldn’t be an issue when applying for the visa. However, some consular posts have become very picky and so depending on the situation, there might be circumstances where the consular post took issue with the person applying for the change of status to begin with. For example, if someone comes to the US on a B-2 visitor visa and then right after applies for a change of status to H-4, the consular post might take issue with the fact that the person applied for the change of status.
Hi, My mother is on B2 and we filed for I539 requesting for 3months extension along with return ticket for Nov25th, now she got RFE asking for more evidance, can she leave USA after replying for RFE? what happens to the I539 status ?will they still consider the case? if the case is not approved, will my mom visa be vaid for next visits?
As long as she leaves before her application for extension of status is denied, and within the additional 3 months that she requested, her visa should continue to be valid for future travel.
me and my husband applied for extension after we entered usa by B2/B1 visa because the officer gave us one month and i had a health problem (caesarean ) so we needed longer stay than one month so applied for extension after one week from entry then we received the receipt notice and returned to our country after one month and half from entry , now more than 8 months passed and there is no reply yet about our extension and we dont know our situation now if we can enter usa again or not
You can continue to use your visa.