Legal Question in Immigration Law in California

Re: issuing a visa for a spouse of an H1B holder

Unfortunately your husband would need to be in a valid nonimmigrant status to change to H-4 status. (And even if he could get H-4 status, he would not be eligible to work in the US). If he were the spouse of a US citizen he could adjust status despite his overstay, but other than that he does not have many real options at this time.

Re: issuing a visa for a spouse of an H1B holder

You cannot change from no status to status; therefore, your husband is out of luck with the change of status to the non-immigrant H-4. In general, H-1b spouses are not authorized to work in the U.S. unless they have independent grounds.

Re: issuing a visa for a spouse of an H1B holder

If your spouse is Canadian and didn't have an I-94, then unlawful presence doesn't apply, but if he has an expired I-94, then if he departs, he will be subject to unlawful presence bars which can be waived only in the immigration context (for permanent residence) with attendant extreme hardship found to only certain relatives.

However, he might qualify for a 212(d) waiver as a nonimmigrant H-4. This would be something that would involve analysis and cognizance of alternate outcomes before embarking upon. It is the kind of case, depending on details that might work or not, depending on how it is prepared.

Check me out at http://www.yardum-hunter.com or email me at [email protected].

Sincerely,

Alice Yardum-Hunter, Attorney at Law, Certified Specialist, Immigration & Nationality Law, State Bar of CA, Bd. of Legal Specialization

Re: issuing a visa for a spouse of an H1B holder

Unfortunately...he is out of status and not eligible for any non-immigrant visa. Let me know if you need any help with your h1b visa.