H4 rfe while H1 transfer pending

[oldestboy]

Hi,

Is there anyone can instruct me how to deal with such case?

I got my H1B approved on Oct 1st and changed my job. Now the transfer is pending. I filed H4 application for my wife on June, with "Current Nonimmigrant Status" F-2 since I was under OPT at that time. Now we received H4 rfe from USCIS saying,

"it appears that the principal applicant of your application completed his F-1 program on October 1, 2015. This means that he is currently not maintaining a valid F-1 nonimmigrant status at this time. Therefore, you are currently not maintaining a valid F-2 status. In order to request a change of status to an H-4 nonimmigrant status, you must be maintaining a valid nonimmigrant status.

If the principal applicant is maintaining a valid F-1 nonimmigrant status, please submit any documentation supporting this. Also, you have the option of requesting to withdraw this application."

How can I do for now?

Thank you so much.

[shervin143]

Your spouse is currently out of status post Oct 1st. A COS is not possible when she is out of status. You should have filed her H4 along with your H1B. She should leave the country immediately, get the H4 visa stamped and return back. To get the H4 visa stamped, she will need your H1B approval notice associated to your present employer.

[oldestboy]

Hi shervin143,

The attorney of my previous company took care of the filing and they filed H4 for all the couples after their spouses were selected for H1B. All they were approved. So the problem is my H1B transfer?

Why she is currently out of status since we got notice of receipt before F2 expired? Cannot she legally stay in US until we got notice of denial? If she must leave US and re-active status, can she do that in Mexico or Canada?

Thanks.

Your spouse is currently out of status post Oct 1st. A COS is not possible when she is out of status. You should have filed her H4 along with your H1B. She should leave the country immediately, get the H4 visa stamped and return back. To get the H4 visa stamped, she will need your H1B approval notice associated to your present employer.

[shervin143]

It is very confusing. I do not get your case. Describe point by point what happened when. If your previous employer already filed H1B and H4 for you and your wife, then why did you once again file H4 for your spouse as a COS from F2? Did the new employer file both H1B and H4 together when they filed the transfer? What happened to your wife's F2 to H4 COS that was filed by your first employer? Did that get approved?

Hi shervin143,

The attorney of my previous company took care of the filing and they filed H4 for all the couples after their spouses were selected for H1B. All they were approved. So the problem is my H1B transfer?

Why she is currently out of status since we got notice of receipt before F2 expired? Cannot she legally stay in US until we got notice of denial? If she must leave US and re-active status, can she do that in Mexico or Canada?

Thanks.

[oldestboy]

Sorry for confusing.
The timeline is,
2015 March, Company A file H1b for me;
2015 June, Company A file H4 for my wife;
2015 August, My H1b approved;
2015 Nov, Company B file H1b for me, Company A revoke;
2015 Dec, Got H4 rfe;

"why did you once again file H4 for your spouse as a COS from F2"
I did not file H4 again, there is only ONE H4 application;

"Did the new employer file both H1B and H4 together when they filed the transfer"
No. The attorney said only need to file my H1B

What happened to your wife's F2 to H4 COS that was filed by your first employer? Did that get approved?
We got RFE on Dec 31st saying "you are currently not maintaining a valid F-2 status blabla"

It is very confusing. I do not get your case. Describe point by point what happened when. If your previous employer already filed H1B and H4 of you and your wife, then why did you once again file H4 for your spouse as a COS from F2? Did the new employer file both H1B and H4 together when they filed the transfer? What happened to your wife's F2 to H4 COS that was filed by your first employer? Did that get approved?

[shervin143]

That could be a mistake then. If Company A filed both H1B and H4 before Oct 1st (while you both were on valid F1 / F2 status), then it is not an issue. Your status might changed from F1 to H1B only on Oct 1st 2015. Since your wife's H4 was filed before that, this is not an issue. You just need to respond back to the RFE with all the proper documents to support this claim. I guess the issue is that company A filed both H1B and H4 as a COS from F1 and F2. But they later revoked your H1B while the associated H4 was still under progress. That could be the cause of confusion. If employer B would have filed the H1B transfer and if they would have filed the H4 for your spouse as well (even thought it is not required) based on her pending H4 petition, this would not be an issue.

You can easily get this petition approved if you respond back to the RFE properly. If you can, get help from an attorney. With proper documentation, your case should get approved.

Sorry for confusing.
The timeline is,
2015 March, Company A file H1b for me;
2015 June, Company A file H4 for my wife;
2015 August, My H1b approved;
2015 Nov, Company B file H1b for me, Company A revoke;
2015 Dec, Got H4 rfe;

"why did you once again file H4 for your spouse as a COS from F2"
I did not file H4 again, there is only ONE H4 application;

"Did the new employer file both H1B and H4 together when they filed the transfer"
No. The attorney said only need to file my H1B

What happened to your wife's F2 to H4 COS that was filed by your first employer? Did that get approved?
We got RFE on Dec 31st saying "you are currently not maintaining a valid F-2 status blabla"

[oldestboy]

Hi shervin143,

Thank you so much. That made me feel better. I will work with the attorney to respond it.

That could be a mistake then. If Company A filed both H1B and H4 before Oct 1st (while you both were on valid F1 / F2 status), then it is not an issue. Your status might changed from F1 to H1B only on Oct 1st 2015. Since your wife's H4 was filed before that, this is not an issue. You just need to respond back to the RFE with all the proper documents to support this claim. I guess the issue is that company A filed both H1B and H4 as a COS from F1 and F2. But they later revoked your H1B while the associated H4 was still under progress. That could be the cause of confusion. If employer B would have filed the H1B transfer and if they would have filed the H4 for your spouse as well (even thought it is not required) based on her pending H4 petition, this would not be an issue.

You can easily get this petition approved if you respond back to the RFE properly. If you can get help from an attorney. With proper documentation, your case should get approved.