Immigration Issues/out of status


My wife came to usa on h4 visa . She changed her status to H1b but due to her pregnancy she didnt work for her employer a single day.  So paystubs so far since her cos.  when i extended my h1b , i didnt apply for my wife's h4 extension as i thought she has h1b.  but now she wants to comeback to her h4 status .  we didnt think about the fact that she is out of status.  now she is on a vacation to home country and planning to go to h4 consular stamping.  what are the possibilities for denial? or shall i get recent paystubs from her h1b sponsor(even if she didnt work) what about my h1b if i go along with my wife for stamping ?
thanks in advance for your help

Eileen Chun-Fruto, Los Angeles immigration attorney writes:

Dear Brook,

Truth to tell, her chances of getting a denial are probably high.  Whenever the Embassy knows that someone has overstayed in the US for any period of time, they can be quite unforgiving in the next visa application/interview.  However, the Embassy officer may be reasonable and listen to your wife's reasons for not working on H-1B.  

But in reality, I don't think the Embassy will be happy with the fact that she remained on H-1B and never worked for her employer "a single day," and they can subsequently deny her H-4 visa application.  

She should also not lie to the Embassy, because if she does so, that's considered visa fraud and she will become ineligible for any visa in the future.  If she can get through the interview without lying or misrepresenting herself, she might still get the H4 visa since you are holding good H-1B status...that makes her eligible for the H-4 visa...if she can get over or avoid a finding of being out of status on her previous H-1B.  

Good luck.

Kind regards,
Eileen Chun-Fruto

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Eileen Chun-Fruto


I can answer any employment-based immigration question including questions about PERM labor certifications, H-1B skilled workers, L-1A multinational managers or executives and L-1B specialized knowledge, R-1 and I-360 religious workers, investor cases (E Treaty Trader and E Treaty Investors and EB-5 "million dollar investors") and O-1 extraordinary ability cases. I can also answer any questions regarding family-based immigration, such as adoptions, waiver cases, consular processing (using foreign consulates to enter as an immigrant), marriage and fiance/fiancee cases, 245(i) cases, VAWA (Violence Against Women's Act), battered spouses, and Child Status Protection Act (CSPA).


I have over 12 years of experience in business and family immigration. I was a former law clerk for the Executive Officer for Immigration Review (the immigration courts) in San Francisco and I current serve as the California Service Center's (CSC) liaison on behalf of the Los Angeles County Bar Association. I represent individuals and corporations alike, ranging from professionals in the high tech, science, liberal arts fields. I have a special niche in working with start-up companies and individuals with more complex immigration issues.

Member, American Immigration Lawyers Association Member, Los Angeles County Bar Association, Executive Committee on Immigration

J.D., University of California at Davis - King Hall School of Law (1997) B.A., University of California at Irvine, cum laude (1994)

Awards and Honors
2005, 2006, 2007, 2008: Selected to Southern California Rising Star - Super Lawyers List (an honor shared by no more than 2.5% of the attorneys practicing in the entire Southern California region) Faculty/Moderator on various AILA and LACBA continuing legal education seminars in the following topics: H-1B, O-1, religious workers, business immigration visas

Past/Present Clients
My typical business clients can range from a start-up company, established engineering and software research and development companies, manufacturing, trade and distribution companies, public and private schools, and religious organizations. Family clients include spouses, parent-child petitions, siblings, naturalization, and most especially, representation of abandoned and neglected children viewed as orphans under the immigration law. I have represented many clients who relied on special provisions of the immigration law to preserve or "grandfather" benefits to family members in limited (and complicated) circumstances, to avoid re-application fees and longer waiting times.

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