Will I be eligible for an H4 visa if my mom applies for an H1 visa? 4 Answers as of June 02, 2011

I entered the U.S on a valid tourist visa. I am however a minor. My i-94 expired in March this year. My visa although is still valid until July. My mom's visa is valid for the next four years and she is still legal. If she applies for H1 visa, would I be eligible to receive h4?

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World Esquire Law Firm
World Esquire Law Firm | Aime Katambwe
Under the scenario you just painted, I believe you will, assuming that H1 means H-1B. A minor cannot accrue unlawful presence. However, just for clarification, I don't know what you mean when you say that your visa is still valid until July and your Mother's is also for the next 4 years. Did your passport expire in March and that is why USCIS only gave you authorization (I-94) to stay until March? What kind of visa does your mother have that is going to be valid for the next 4 years? Now, if you are talking about the entry visa that you received at the Consulate before you came to the US, then you need to know that it is not a visa for either of you to stay in the US. I am talking about the self-adhesive visa that is affixed to one of the pages in your passport. It is usually colorful (purplish, pinkish and indigo shades of blue and green, etc. with a visa control#; issue date; issuing post; issue date; validity and all the rest of it). If that is what you have, then you need to understand that that is only an authorization to apply for admission into the US at a port of entry. It only allows you to travel to the US and seek admission at the airport or port or border, etc. Without it, no airline is authorized to fly you to the US. Once at the airport and you present it, then a US Immigration Officer will stamp your I-94 card (which you filled out in the plane on your way here) and write down the length of time that you are authorized to remain in the US. Once that I-94 is close to expiring, then it is time for you to leave the US. If it expires and you are still in the US, then you have overstayed your authorization and you become removable from the US. It sounds to me like this is what you are talking about. I may be wrong, but I just wanted to clarify for you just in case. As far as your stay in the US goes, only the date shown on your I-94 controls, nothing else. Good luck!
Answer Applies to: California
Replied: 6/2/2011
Law Office of Christine Troy
Law Office of Christine Troy | Christine Troy
Your status in the US terminated as of the date listed on your I-94 card, not the visa. So you are currently out of status. You need to leave the US in order to obtain H-4 status. You will do this at the US consulate in your home country. Because you are a minor, they probably will not penalize you for the overstay but I do recommend that you leave quickly. Also because you overstayed, technically your B-2 visa is cancelled under 222g. You are not supposed to use it again and it is very unlikely that DHS will let you in on it, given your overstay on this trip.
Answer Applies to: California
Replied: 6/2/2011
Fong & Associates
Fong & Associates | William D. Fong
As you are currently out of status, you will not be eligible for a change of status. If your mother is an H-1B and you are a minor, then you can apply for the visa at your home consulate; but you cannot file from the U.S. Your visitor visa (if you have one) is cancelled by operation of law due to your overstay. You certainly should leave the U.S. before you are out of status for 180 days (about 6 months) from the date of your B-2 I-94 expiration. If you leave before then, you will not be subject to the 3-year bar. You will need to explain why you overstayed and you must not have otherwise violated your status. Please call and I will explain your options. Thank you.
Answer Applies to: Texas
Replied: 6/1/2011
Law Offices of Caro Kinsella
Law Offices of Caro Kinsella | Caro Kinsella, Esq.
No you cannot obtain H-4 status, as your I-94 is expired. The I-94 gives you the authorized stay, the visa is simply your entry document into the U.S. therefore the I-94 controls. in order for you to obtain H-4 status you would need to depart the U.S. and pick up at the U.S. consulate and you will trigger bars if the I-94 has expired more than 180 days.
Answer Applies to: Florida
Replied: 6/1/2011
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