H1 Extension pending for me and my wife. Want to apply COS to H4 for my wife.

[piyushm]

Hi,

Me and my wife have applied for H1 Extension and it is currently pending with USCIS.
Can I apply for change of status to H4 for my wife?
Kindly advise, as we need to proceed with this urgently.

Thanks in advance for your help !!

Thanks,
Piyush

[kabkaba]

Has her I-94 expired?

[piyushm]

Yes I 94 is expired.

[kabkaba]

Then this gets complicated.
She has to file I-539 based on your H1 petition to change her status. But to show current status, she will have to base it on her own pending H1 extension.
Now after filing COS, if her employer withdraws H1 petition, the COS may get denied because that's what kept her legal after I-94 expiry.
If H1 is not withdrawn and it gets approved after COS to H4, her status will again change to H1 and she will have to work with H1 employer to maintain that status.
If H1 is not withdrawn and it gets approved before COS to H4, that will be the best case since then she will not have to maintain H1 status owing to her pending COS.

A possible option to achieve this is that she can leave the US, your employer can upgrade their H1 to premium and after approval your wife can apply for H4 Visa and return in H4 status. Her employer will have to withdraw H1 petition in this case.

[piyushm]

Thanks very much for your advice. It helps a lot.