Sanford, FL asked in Immigration Law for Florida

Q: Dependent child (13 years) H4 visa in person stamping without primary h1. The primary h1 has pending felony charge.

I am currently on h1 with a 3rd degree felony charge, currently bonded out with arraignment date on June 24. I had planned to travel to India on May 18 with in person visa dates on May 21 (vfs) & May 22 (in person). My son (age 13) was planning to join me for stamping. Now I am not planning to travel as I want to settle the case via the pre trial diversion.

My wife has her own h1b and she is planning to travel and has same visa interview date ( May 21 & May 22).

Question is - Can my son who is my dependent can travel with my wife and appear for in person interview. Will he have any issues getting visa or on poe or is it recommended that he does not travel and just my wife travels.

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1 Lawyer Answer
James L. Arrasmith
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  • Immigration Law Lawyer
  • Sacramento, CA

A: In this situation, it is generally recommended that your dependent child (13 years old on an H4 visa) does not travel for the in-person visa stamping without you, the primary H1B visa holder, especially given your pending felony charge. Here are a few reasons:

1. Visa issuance: The consular officer may be hesitant to issue an H4 visa to your child without the primary H1B visa holder present, particularly when there is a pending criminal case. They may require more information or documentation related to your case before making a decision.

2. Port of Entry (POE): Even if your child obtains the H4 visa, they may face additional scrutiny at the U.S. port of entry due to your pending felony charge. This could lead to delays or, in some cases, denial of entry.

3. Dependent status: As an H4 visa holder, your child's status is dependent on your H1B status. If your H1B status is jeopardized due to the criminal charges, it could also impact your child's H4 status.

Given these factors, it is advisable for your wife to travel alone for her H1B visa stamping while you resolve your criminal case through the pre-trial diversion program. Once your case is settled and you have more clarity on your H1B status, you can plan for your child's visa stamping and travel accordingly.

It is highly recommended to consult with an experienced immigration attorney who can assess your specific situation and provide guidance on the best course of action for you and your family.

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