My husband entered USA on L2 visa on Feb 2015. Since his Passport was about to expire in Dec 2015 he got the i94 only till December 2015 though his L2 VISA was valid until Feb 2018.
After extending passport we forgot to extend i94. We realized it only in Feb 2016 so he ended up staying with expired i94 for one month. Immediately he exited and reentered to get new i94.
After that he did a change of status from L2 to H1. Now he is going for H1 stamping for the first time to India. In DS160 we have this question "Have you ever been unlawfully present, overstayed the amount of time granted by an immigration official or otherwise violated the terms of a U.S. visa?"
please advise if he should answer "Yes" to the above question.
Thanks in advance
Yes, the visa application must be answered truthfully. You may seek your company's attorney's advice as to whether he should leave the US or travel but if your spouse will leave the US and apply for the visa, he needs to be truthful and accurate on the form, or face an inadmissibility for material misrepresentation in a visa application.
It will be a good idea to retain a counsel towards the visa application so they oversight can be adequately explained.
This response is general in nature and cannot be construed as legal advice, given that not enough facts are known. Any comments offered on Avvo are of a general nature only, and are not meant to create an attorney-client relationship. You are encouraged to seek independent and private counseling for a complete review of your case.
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