Need advice on H1 to H4 - H1 expired and extension denied

[sgottipa]

Hi all,

I am trying to get answers to some H4 related questions. My wife's H1 expired Sep 30, 09. The extension was denied Oct 15 (we checked the status online), even though an RFE was fulfilled with all relevant proof. We have not yet received the denial letter from USCIS with the denial reasons. Is she going to be out of status from the denial date or Oct 1?

1. Can I sponsor my wife for H4 without her leaving the country?
2. If the answer to 1 is no, then she will go back to India the very next day after we receive USCIS notification, what are the chances if she applied for H4 from India? Will the fact that she was out of status from Oct 1, 09 be held against her?
3. Does the reason for denial of her H1B have any bearing on her H4 visa application?
4. Lastly, I am in the US and my H1b visa stamp on my passport also expired on Sep 30, 2009. But I do have a valid 3 year I-797 extension till 2012 along with all other supporting documentation. Will this valid I-797 be sufficient for her H4 or do I need to have a stamped visa?
5. Bottomline is she has to move to H4 now immediately. I am confused on the how to do it part. My employer's attorney says they can initiate her H4 right away with form 1-539, my wife's attorney says its better to go to India and get H4 done....I do not know what to believe..

Would appreciate any insight and advise on my situation.

Thanks a lot for your time,
sgottipa.

[sk4ih]

1. No. She is out of status now and COS from H1 to H4 will be denied. You would have done this while she was in H1.

2. Not a problem.

3. No.

4. I-797 and your pay stubs will be enough for H4.

5. See 1.