H4 OverStay impact on spouse’s H1 PERM Process

[Dharmu 0]

Dear All,

My PERM was filed on April 2020 & I waiting for the approval. My H1B VISA is going to max out on June 15th, so my employer asked to leave USA at the earliest. We have a US daughter 3 months old & we have applied for the passport & haven’t received it yet.

So I cannot leave my daughter here alone. So I was thinking of option of B2. My company says change of status is not good as it might max out my H1B. Because the approval date might come with the current date instead of date of apply.

So I am considering to apply change of status for my spouse who is on H4 to stay with the baby & they would travel back once my daughter gets passport & travel opens.

My question:
If H4 change of status is applied & might consider overstay if the approval does not come with the date of apply, will it have any impact on my H1B validity? I want to keep 1 week of validity to get extension once my i140 is approved.

Please help me clarify.

[igoyougoduke 1,656]

If H4 change of status is applied & might consider overstay if the approval does not come with the date of apply, will it have any impact on my H1B validity?  No

 

 

[SusieQQQ 11,586]

If she applies to change to B2 before/when you leave, no it won’t affect your H1. However - if you are concerned about an overstay finding - if that happens (not saying it will but its what you were asking about) that could prevent her getting a new H4 when you want to return. So the risk is not you and your H1, but that she can’t come with and you have to leave her behind (where is baby in this scenario?)

[Dharmu 0]

Baby is US citizen,  she should be okay. Since I converted her to B2, she did not overstay for more than 180 days? I read in some forums that they might forgive for valid reason. We do have a valid reason. No passport for the kid & expired VISA. Please correct me if I am wrong.

[SusieQQQ 11,586]

22 minutes ago, Dharmu said:

Baby is US citizen,  she should be okay. Since I converted her to B2, she did not overstay for more than 180 days? I read in some forums that they might forgive for valid reason. We do have a valid reason. No passport for the kid & expired VISA. Please correct me if I am wrong.

Yes I get that, but I was simply addressing your concern of overstay, not arguing the merits of it.
Do you have a plan B if your wife can’t get back? The baby being a USC doesn’t solve the problem of who looks after her if your wife is unable to get a visa.