H4-H1 COS..when primary H1 extn is pending

[kattu786]

I came to US on H4.However , I had H1 in the past and hence I am cap-exempt.One employer is ready to file my H1 petition but problem is that my spouse H1 extension as well as my H4 extension both are pending.

I discussed with one attorney and he says that my H4-H1 cos can only be filled if either my spouse H1 or my H4 gets approved.Currently I don't have a status and hence COS can't be filled.My query is

1) whether my spouse's H1 approval notice will serve the purpose?

2) Is it necessary for my H4 extn to get approved ?

3) Can it be filled now when both extn are pending?

[kattu786]

I came to US on H4.However , I had H1 in the past and hence I am cap-exempt.One employer is ready to file my H1 petition but problem is that my spouse H1 extension as well as my H4 extension both are pending.

I discussed with one attorney and he says that my H4-H1 cos can only be filled if either my spouse H1 or my H4 gets approved.Currently I don't have a status and hence COS can't be filled.My query is

1) whether my spouse's H1 approval notice will serve the purpose?

2) Is it necessary for my H4 extn to get approved ?

3) Can it be filled now when both extn are pending?

Please reply..

[raghvi]

Please reply..

When are your respective I94 expiring? If already expired, then pretty much what the lawyer is saying is right. You have to wait for your H4 approval to come. Ask your spouse's employer to upgrade H1 ext decision to premium to get a faster response.

This is my opinion not legal advice.

[kattu786]

When are your respective I94 expiring? If already expired, then pretty much what the lawyer is saying is right. You have to wait for your H4 approval to come. Ask your spouse's employer to upgrade H1 ext decision to premium to get a faster response.

This is my opinion not legal advice.

Both the I-94 got expired on 10th Aug but the extn were filed timely...H1 extn was filed in June and my H4 extn was filed in July.Even if H1 extn is upgraded my H4 would still be normal processing.If my wife's H1 extn decision is done with my H4 decision pending the attorney is saying that H4-H1 Cos can be filed.Just wants to verify if that is true?

[raghvi]

Both the I-94 got expired on 10th Aug but the extn were filed timely...H1 extn was filed in June and my H4 extn was filed in July.Even if H1 extn is upgraded my H4 would still be normal processing.If my wife's H1 extn decision is done with my H4 decision pending the attorney is saying that H4-H1 Cos can be filed.Just wants to verify if that is true?

Had H4 ext also been filed along with H1 ext then upgrading H1 Ext to premium might have been fruitful but as H4 was applied separately I think there may be delays and you may not get benefit of Premium processing.

There is no law preventing you from filing H1 using the old pettion but USCIS may eventually put your COS to H1 in RFE asking you to first prove that you are/were in valid status from 10th Aug till H1 COS application. Which would be possible only after securing your H4 ext approval and associated new I-94.

If I would were you I would await H4 ext approval first. As filing multiple petitions with USCIS can lead to confusions. Example, if COS to H1 is mistakenly approved and subsequently H4 decision is negative ,you would be out of status, if H4 is approved later your would again move from H1 to H4. So to avoid these confusions with respect to your status with USCIS, I would suggest you first await H4 Ext approval.

This is my opinion not legal advice.

[kattu786]

Had H4 ext also been filed along with H1 ext then upgrading H1 Ext to premium might have been fruitful but as H4 was applied separately I think there may be delays and you may not get benefit of Premium processing.

There is no law preventing you from filing H1 using the old pettion but USCIS may eventually put your COS to H1 in RFE asking you to first prove that you are/were in valid status from 10th Aug till H1 COS application. Which would be possible only after securing your H4 ext approval and associated new I-94.

If I would were you I would await H4 ext approval first. As filing multiple petitions with USCIS can lead to confusions. Example, if COS to H1 is mistakenly approved and subsequently H4 decision is negative ,you would be out of status, if H4 is approved later your would again move from H1 to H4. So to avoid these confusions with respect to your status with USCIS, I would suggest you first await H4 Ext approval.

This is my opinion not legal advice.

Thanks Raghvi...If I file COS to H1 now as premium processing and if I get the approval , I can revoke the H4 petition later.Do you think it would be a safer option ?

I understand getting the H4 approval is the best option but its taking a lot of time these days , so I was thinking of above option.Do you see anything going wrong if I go with the above option.

[raghvi]

Thanks Raghvi...If I file COS to H1 now as premium processing and if I get the approval , I can revoke the H4 petition later.Do you think it would be a safer option ?

I understand getting the H4 approval is the best option but its taking a lot of time these days , so I was thinking of above option.Do you see anything going wrong if I go with the above option.

If you do that you wouldnt have any valid status from 10th August till H1 approval. As I said earlier, if you file COS to H1 it will most likely go into RFE asking you to first prove your current valid status. One can do a COS only if one is already in a valid status. You currently are not in a valid status unless H4 ext is approved.

The only other option would be to leave US, get H1 stamped and return.

This is my opinion not legal advice.

[kattu786]

If you do that you wouldnt have any valid status from 10th August till H1 approval. As I said earlier, if you file COS to H1 it will most likely go into RFE asking you to first prove your current valid status. One can do a COS only if one is already in a valid status. You currently are not in a valid status unless H4 ext is approved.

The only other option would be to leave US, get H1 stamped and return.

This is my opinion not legal advice.

Thanks Raghvi.....One last thing I want to ask....If my spouse H1 is approved and she changes jobs , can her new employer file my H4 with her H1 (as preimum) or would they have to wait for my present H4 extn ?

[raghvi]

Thanks Raghvi.....One last thing I want to ask....If my spouse H1 is approved and she changes jobs , can her new employer file my H4 with her H1 (as preimum) or would they have to wait for my present H4 extn ?

Without leaving US, Your present H4 extension successful approval is the only thing that will prove your valid status from 10 th Aug onwards. So yes, for any subsequent filing, you would still need H4 ext approval if you decide not to go out of US.

This is my opinion. NOt legal advice.