H1 Cap Count with prior Approved Petition

[shervin143]

If an immediate start date is requested by filing an H1B based on an existing petition, then the H1B will be effective as of the approval date (It won't have a future effective date of Oct 1st). However, if both H1B and H4 are effective as of Oct 1st, then it is very hard to predict your status. As per theory, your status should change as per the last approved petition.

Thanks for the info.
My husband , working on L1, is having a prior approved H1 expiring in Sep 2011. Never stamped and never used. If he changes his status from L1 to H1 with immediate start date, but if USCIS approves it from 1st Oct, then my existing L2 to H1 and then mow L2 to H4, both will be effective from 1st Oct. In this scenario, which one will take into effect?

[visa_help_2011]

When both H1 and H4 I94 valid from Oct 1, then can we get the H4 one revoked/withdrawn etc,. so that only H1 I94 remains valid and hence becomes effective. Is there anything that my H1 employer can do so that on 1st Oct H1 I 94 is effective and not H4 I 94. Does starting working on H1 automatically results in H1 status with H1 I 94.

Or Can my husband apply L1 to H1 with immediate start date and then if its approved with the same start date, then L2 to H4 is applied.
But if it is approved from Oct 1st , due to cap count,then I need not apply for L2 to H4 so that on Oct 1st my H1 I 94 which I already have takes effect.
Pls advise.

[shervin143]

When both H1 and H4 I94 valid from Oct 1, then can we get the H4 one revoked/withdrawn etc,. so that only H1 I94 remains valid and hence becomes effective. Is there anything that my H1 employer can do so that on 1st Oct H1 I 94 is effective and not H4 I 94. Does starting working on H1 automatically results in H1 status with H1 I 94.
>>> It doesn't work that way. Revoking a petition will not automatically change your status. If you are in H4 status as per USCIS and if you start working, then it is considered illegal employment. On the other hand, if your status is H1B and if you don't work, you are out of status on H1B.

Or Can my husband apply L1 to H1 with immediate start date and then if its approved with the same start date, then L2 to H4 is applied.
But if it is approved from Oct 1st , due to cap count,then I need not apply for L2 to H4 so that on Oct 1st my H1 I 94 which I already have takes effect.
>>> I have no idea what you are trying to say.

[visa_help_2011]

What I am trying to say here is, to avoid getting H4 fro Oct1st because of L1 to H1, Can we apply dependent COS, I539, as soon as we get the approval on I129 or is it mandatory that I539 should be applied along with I129 only.

[shervin143]

For a COS to be successful, you need to be in a valid status. If H4 is not applied along with your spouse's H1B petition, then upon approval of the COS from L1 to H1B, you will go out of status on L2. When you are out of status on L2, the COS to H4 is not possible.

What I am trying to say here is, to avoid getting H4 fro Oct1st because of L1 to H1, Can we apply dependent COS, I539, as soon as we get the approval on I129 or is it mandatory that I539 should be applied along with I129 only.