H1 to H4 and then to H1

[san1850]

Currently my wife is on H1 and it is expiring second week of april. As she is being laid off and dont have enough time to file for transfer, we are thinking to file I 539 to convert to H4. while her h4 is in process if i am able to find a employer who is ready to file for my H1 can i apply for cos to H1. Am i considered quota exempt or there needs to be quota available for me to file H1.So for instance if her h4 is pending for 1 month and we apply for H1 in premium processing what happens. If H4 is approved after that H1 is approved what happens in that scenario.

[shervin143]

Currently my wife is on H1 and it is expiring second week of april. As she is being laid off and dont have enough time to file for transfer, we are thinking to file I 539 to convert to H4. while her h4 is in process if i am able to find a employer who is ready to file for my H1 can i apply for cos to H1.
>>> You can. But not advisable. Multiple petitions for different status will create unnecessary status confusion on the order of approval.

Am i considered quota exempt or there needs to be quota available for me to file H1.
>>> You don't have to go through new quota. You can use the CAP from your previous H1B approval and request an immediate start date.

So for instance if her h4 is pending for 1 month and we apply for H1 in premium processing what happens. If H4 is approved after that H1 is approved what happens in that scenario.
>>> Search and read about the last action rule. Her status will change as per the last petition that becomes active. If H4 becomes active after H1B, her status will change to H4 and she cannot work.

[san1850]

Thanks for your response. Can we withdraw H4 application before we file H1b with a new employer. If we can do it, What happens during the period before we filled H1b if the gap is around 30 days. WiIl she be in status or out of status then.

[shervin143]

Well, if you withdraw the petition, that will make you out of status. Never advisable to do that.

Thanks for your response. Can we withdraw H4 application before we file H1b with a new employer. If we can do it, What happens during the period before we filled H1b if the gap is around 30 days. WiIl she be in status or out of status then.

[san1850]

Thanks for the response shervin. Forget to mention she as a valid H4 stamp on passport till Oct 2012. So we will apply for I 539, then after finding a new employer we travel to canada and she will enter on H4. After coming back we will file for H1. Will this be ok, once entered on H4 will I 539 is with drawn automatically?? Do you think this is ok instead of filling concurretly both H4 and H1 and creating confusion.