H4 extension pending, Got H1B in MS quota. Now what ?

E

esyed

Registered Users (C)
My (H1B) and my spouse's (H4) expired in March 08.

* company lawyers filed for my H1B extension but forgot to file her H4 extension.
* did file an extension once it was realized, the time between expiration of visa & notice date (reciept from USCIS about recieving H-4 extension) was 10 days. So my spouse was out of status for 10 calendar days.

* Spouse's H1-B was filed, got selected in MS lottery & COS (change of status) was approved. However her H-4 extension petition is still pending.

1. Does H-1B approval auto-magically invalidate the H-4 extension we have
filed ?

2. Is there any correspondence intimating us about the invalidation of her H-4 ?

3. Since she was out of status by 10 days for H-4 filing lapse, can she go
to Canada/Mexico for new visa stamp (H1-B) or does it have to be India
(country of residence) ?

If you have any info w.r.t the above situation, plz share your thoughts.

Thanks.
 
esyed said:
My (H1B) and my spouse's (H4) expired in March 08.

* company lawyers filed for my H1B extension but forgot to file her H4 extension.
* did file an extension once it was realized, the time between expiration of visa & notice date (reciept from USCIS about recieving H-4 extension) was 10 days. So my spouse was out of status for 10 calendar days.
---- if the H-4 was filed as a "Nunc Pro Tunc" petition, you may be fine. You may also be fine as the gap is very small, but you never know. Strictly going by the law, "change or extension of non-immigrant status requires that the alien is in valid status at the time of filing"

* Spouse's H1-B was filed, got selected in MS lottery & COS (change of status) was approved. However her H-4 extension petition is still pending.

1. Does H-1B approval auto-magically invalidate the H-4 extension we have
filed ?
---- the "last action" taken by USCIS determines your spouse's status. There is a likelihood that H-1B approval may come after H-4, in which case your spouse is in H-1 from the effective date of H-1B approval. All this holds good if your spouse's H-1B is approved.

2. Is there any correspondence intimating us about the invalidation of her H-4 ?
---- None

3. Since she was out of status by 10 days for H-4 filing lapse, can she go
to Canada/Mexico for new visa stamp (H1-B) or does it have to be India
(country of residence) ?
---- it is safer to go to India, but the question is why does she need to go to India? If the COS is approved, she is in valid H-1B status from the effective date and she can immediately start working from the effective date

If you have any info w.r.t the above situation, plz share your thoughts.
---- think about the situation of H-1B denial and/or H-4 denial. Supposing both are denied, she would have accrued unlawful status right from March 2008 and if the unlawful period is > 180, the downside is quite severe.

Thanks.
Click to expand...

Please see comments.
 
Hi John,

Thanks for your thoughts on the situation. Just to clarify...

* My spouse's H1B got approved and she has received I-797 A (COS) with notice date of Jul 31, 2008.

* My question is.. does approved COS (change of status) invalidate/cancel her pending H-4 extension petition. Her H4 (I-539) was filed requesting USCIS to exercise discretion under 8 C.F.R 214.1(c)(4) to approve the extension. Not sure if it is "Nunc Pro Tunc". We did receive a receipt for that petition though and status search on USCIS indicates "Case received and pending"

* Reason for India trip is to attend a sibling wedding in november, so trying to figure if she can get her H1B stamped in Mexico etc and make the trip to India.
 
You should immediately immediately withdraw your H-4 petition. The "last action rule" will come into effect, otherwise.
 
Hi John Thomas,

I'm on L1 A Blanket and my spouse on L2. Our visa is expiring on 9th September 2008. My company has applied for extension. Meanwhile my spouse got H1b approval on 21st Aug 2008. No idea about COS. Since H1 starts on Oct 1st, and my extension is pending will my spouse be out of status from Sep 9 - Sep 30 or on H1 from the approval date. If the L2 extension comes after Oct 1, will he be changed back to L2 because of Last action rule. Do we need to withdraw the L2 extension application to continue in H1. An earlier response would be much appreciated. Please mail me at cindrotri@yahoo.com.

Thanks.
JS.
 
If your H-1B was filed requesting a change of status, the H-1B approval will come with an updated I-94 at the bottom of I-797 approval notice. In very less cases, if there is a status history problem, USCIS approves the H-1B petition but does not change status, meaning, I-797 without an updated I-94. In this circumstance, the alien has to get a visa and enter with a new I-94.

In your case, if the L-2 approval comes after Oct 1st 2008, yes, your spouse will be in L-2 status. Your spouse would then have to get a H-1B visa stamp and reenter with a new I-94, in order to work for the H-1B employer. Your spouse can also try for another COS from L-2 to H-1B, quoting all facts. USCIS may approve change of status and your spouse can then work for the H-1B employer without leaving US.

If the L-2 was pending, your spouse may be okay even if he/she does not start working for the H-1B employer. However, please do note that if the L-2 approval comes after 01-OCT-2008, you will have to do the above.
 
Hi John,
Thank you very much for the response. Sorry to bothor you again. I still have some doubts.
1. What will be my spouse's status after 9th sep 2008 which is the expiry date of my L1 /L2.
2. If he received the new I-94 (COS) will he be in H1 or out of status from sep 9.If new
I 94 is there with the approval notice is there a need to apply for extension of L2.

2. If the L2 approval does not comes before Oct 1, can we withdraw his application
for extension, Since from Oct 1 he will be on H1.

Please help me out in this situation. Sorry for the inconvenience.

Thanks
JS
 
JackSmith..

It might be better if you can move your question to a new thread. Plz refer to the "subject" of thread I have started. It will help readers to post their comments to question I have asked. Your question and concern are not same as mine.

Thanks
 
hi John,
pl help me out.
my wife applied for h1b in apr08 but still h1b not yet approved (as told by her employer. all they said that her case has been picked up in the lottery).
last week i applied for my h1b extension and her h4 extension as our visas are expiring in sep 2008.
so is this right? suggest me.
thanks.

JohnThomas82 said:
You should immediately immediately withdraw your H-4 petition. The "last action rule" will come into effect, otherwise.
Click to expand...
 
Per USCIS' last action rule, if the H-1B approval with change-of-status comes after the H-4 approval, your wife will be in H-1B status. Otherwise, she will be in H-4 status. If she ends up in H4 status, you will have to file again a petition with the USCIS for having the status changed to H-1B.

In your case, it is definetly recommended that you file for H-4 now as it is expiring in Sep 2008.
 
last week, my employer filed my h1 extension and also her h4 extension.
i m worried now. i filed for her h4 extension because i dont have approval info from her employer as of today.
so how do uscis know?
when will i get to know about her h4 extension (from my employer)?
when will i get to know about her h1 cos (from other employer)?
 
first of all thank you for prompt replying.
second we dont have receipt #s because they didnt gave us.
as per your experience/knowledge:
when we get info about her h4/h1?
when will i receive my h1 extension?

one important point came into my mind:
neither i informed my employer about her h1 application, nor my employer asked for her h1 application receipt # while filing for her h4.
so is this ok?????
 
John,
I am also in a very similar situation. I have a different interpretation of Last Action rule. Can you please shed some light on it.

My wife's H4 expired on Aug 1st 2008. Her H1B petition was approved on Apr 25th (with COS). We applied for H4 extension and it has not been approved yet.

What should we do now ? I don't want to pull the H4 extension petition till Sep30th because of my interpretation of the Last Action rule is as follows..

- H1B petition although approved will take effect only on Oct1st (COS will start only on Oct1st). So if the H4 petition is approved before Oct1st, then the COS will be used and she will be on H1B on Oct1st.

-- If H4 extension is not approved till Sep30th, we can pull it out. Would she be H4 status from Aug1st to Sep30th ? (because we have pulled out the H4 extension papers)

Please advice whether my interpretation is right..

Thanks in advance
Balaji

bhopalite said:
first of all thank you for prompt replying.
second we dont have receipt #s because they didnt gave us.
as per your experience/knowledge:
when we get info about her h4/h1?
when will i receive my h1 extension?

one important point came into my mind:
neither i informed my employer about her h1 application, nor my employer asked for her h1 application receipt # while filing for her h4.
so is this ok?????
Click to expand...
 
Hi,
I am on HIb Visa and it is going to expire on Sept 30th,2008.My employer A has offered to get an extension under certain conditions (I need to pay them all the loss incurred to them if they terminate me or if I change my employer).I have received an offer from employer B telling that they could transfer my visa.My question is whether I will be of status if I don't get the visa transfered before 30th sept.also should I get my visa stamped on my passport from outside the U.S?
If I choose to stick with emploer A,Will I be out of status if I don't get my visa extension before 08/30 as well?what are the documents I need to submit for my dependant's visa renewal?how long does it take to get an HIB visa extension /transfer..pls reply..
thanks in advance
 
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