Change of Status - H1 to H4 Question - Need Help Urgent

[sdrsandeep]

Hi,

My wife resigned on July 2nd 2015 and her employer forgot to file H4 during her notice period. When we checked the status of filing with the employer, they told us that for some reason her H1- H4 filing was not done. I have valid H1 till oct 2016.

My questions are:
1) Whether i can file I-539 for my wife on my own ? Will it get approved ?
2) can you please help me with correct I-539 filing address? There are couple of address in USCIS website and it is little confusing to choose which one.
3) Is there any other alternative in this case other than filing I-539?
Many of them told us that she is already out of status and we need to travel back to India. We are still in USA and have new born and also, I dont have india visa for my kid (Just applied OCI) and hence dont want to travel back for atleast another 2 months.
Please help and let me know for any questions.

[shervin143]

My wife resigned on July 2nd 2015 and her employer forgot to file H4 during her notice period. When we checked the status of filing with the employer, they told us that for some reason her H1- H4 filing was not done. I have valid H1 till oct 2016.
>>> It is not the employer's responsibility to file the COS from H1B to H4. Why will they spend the money on an employee who has resigned. Actually you should have filed the COS from from H1B to H4. It is your responsibility to make sure you are in the right status,

My questions are:
1) Whether i can file I-539 for my wife on my own ?
>>> Yes, you can file it on your own. That exactly what you should have done before she quitting her job.

Will it get approved ?
>>> Very hard to predict since she is out of status on H1B for a month now. You will need to attach her latest pay slips to prove that she is currently maintaining her H1B status for a smooth COS from H1B to H4. But since it is only a month since she quit, it might work. But can't predict. I-539 for H4 should have been filed prior to her last working day.

2) can you please help me with correct I-539 filing address? There are couple of address in USCIS website and it is little confusing to choose which one.
>>> There will be clear instruction on filing form I-539 in USCIS website. Depending on the state that you live, it should either go to California service center or Atlanda service center.

3) Is there any other alternative in this case other than filing I-539?
>>> Yes. She can leave the country and return back in H4 visa. Another alternative to get back to H1B status and then file the COS to H4, for which the employer will need to pay her for another 1 month (highly unlikely) and generate pay slip for the month of July. If that happens, then she will be in valid H1B status and the COS to H4 will go through fine.

Many of them told us that she is already out of status and we need to travel back to India.
>>> That is correct.

We are still in USA and have new born and also, I dont have india visa for my kid (Just applied OCI) and hence dont want to travel back for atleast another 2 months.
>>> Getting the Indian visa for the new born is easy if you directly visit the Indian embassy. Either leaving the country and returning back in H4 or filing the COS are the only two options. If you file the COS, then it will take about 2-3 months to get the decision. But since she is out of status, if the COS to H4 gets denied, then she would have accumulated about 4 months of out f status period.