L1 to H1 L2 to H1B question.

[anoopvn]

I have a Couple of questions on L1/L2/Ead-H1.
OK here is the situation.

I am currently on L1B and my wife is on L2 EAD. My company is now appling for COS to H1B, and my wife has also found an employer to file her H1.

Since my Wife is on EAD I wanted to make sure she got her H1B before me, so I asked my company to apply for H1b with start date of 12/01/2011.
But now she has finally found an employer and will be filing her H1 soon, and may get approved before 12/1/2011 (They have not filed yet but we are planning for premium processing).
Now my question is, Since my company is applying for COS for me as well as my wife, if my petition gets approved, and on 12/1, will She also go back to status H4?
I know that it is last approval date that matters, so looks like her status may change to H4, since Her H1 will be approved and start date may be earlier than december.

So if we specify even her start date as Dec 1st, which visa will take priority, since both of them is approved on the same date?
The other thing is if she specifies her start date as Dec 2nd, She will be on H4 status on 1st december, Will this make her h1B COS invalid because it was applied from L2 to H1B??

[shervin143]

If she has already found an employer and if they are filing her COS from L2 to H1B, then why do you want to file her H4 and complicate things. Let her file her H1B with COS in premium processing. Once approved, she can start working in H1B status. In the mean time, let your company file your H1B and not her H4. Filing two petitions for two different status will always complicate things. In such case, you have to apply the last action rule. The last effective I-94 will take effect.

[anoopvn]

Thanks

Thanks Shervin for the response.

If I do not apply for her H4 COS, then if her H1B gets rejected for any reason, will she be out of status after december 1?
In that case can we apply for H4 COS immediately and be in status again?

[shervin143]

This what you should do. Let her file her H1B first in premium process. That should get her the result within 15 days. You file your H1B after that or file the H1B now with a future start date (say Dec 15th or Jan 1st) which should give you enough time to file the H4 incase her H1B gets denied. Her H4 should be filed (if H1B gets denied) before she goes out of status on L2.

Thanks Shervin for the response.

If I do not apply for her H4 COS, then if her H1B gets rejected for any reason, will she be out of status after december 1?
In that case can we apply for H4 COS immediately and be in status again?

[anoopvn]

Thanks

Thanks Shervin,
My company has specified my start date as Dec 1.
Assuming if my wife gets an RFE on premium processing on Nov 15th, and then I apply for her H4.
What status will she be on Dec 1st? Will she be Out of status, or will she be ok, since there is a decision pending?
If my H1b is not yet approved because I am processing it in Normal processing, Then can I apply for her H4 COS, with out my H1B approval? If we can do it, then ideally who should do it, Me or my employer?
Also how much time does it generally take for H4 visa approval? and if we have applied for H4 visa, till a decision is made, is her stay in the us legal?

[shervin143]

My company has specified my start date as Dec 1.
Assuming if my wife gets an RFE on premium processing on Nov 15th, and then I apply for her H4.
What status will she be on Dec 1st? Will she be Out of status, or will she be ok, since there is a decision pending?
>>> She will continue to be in L2 status until her H1B gets approved. If her H1B is rejected, then she will continue to be on L2 until your H1B effective date. If her H4 is not filed before your H1B becomes effective, then she will go out of status on L2. Keep in mind that her H4 should (if at all) need to be filed before her current I-94 expires. Or there will be complications due to bridging.

If my H1b is not yet approved because I am processing it in Normal processing, Then can I apply for her H4 COS, with out my H1B approval?
>>> Possible. Her h4 can be filed basedon your pending H1B petition.

If we can do it, then ideally who should do it, Me or my employer?
>>> It doesn't matter. H4 can be filed by yourself. But if the employer is willing to do it, then let them do it. They will have an attorney and they will make sure the correct documents are attached. But this process is not complicated. You can do it yourself too. Search and read about the instructions to file form I-539.

Also how much time does it generally take for H4 visa approval?
>>> 2-3 months.

and if we have applied for H4 visa, till a decision is made, is her stay in the us legal?
>>> Yes.