H-4 not applied - is it mandatory for dependent to leave US before October 1?

[InfoSeeker123]

Requesting advice from experts/gurus on an urgent basis.

Please find the relevant details listed below:

1) Me and my wife came to the US on a L1B visa in August 2009 (validity of both the visa and the I-94s was till end of July 2012)

2) My company applied for a conversion to L1A in March 2012 (L2 extension for my wife) which got approved in early July 2012 (new I-94 valid till end of July 2014 for both of us)

3) They also applied for a H1B (for me only through Change of Status (COS) method) in June 2012 and the same is currently under processing by USCIS

4) H-4 was not applied for my wife. They initially said that they are applying H-1B for all primary applicants and H-4s for the dependents could be added to the petition later. Now they are saying that the couldn't have applied for my wife's H-4 since there was a gap in I-94 (form end-July to October 1 2012, given that her original I-94 was expiring in end July).

5) They are also saying that since she will be out of status due to my automatic switch to H1B from L1A, she needs to leave the US before October 1, get the H-4 stamped/activated at the consulate and then return after October 1

Questions:
1) Is the statement in (4) above correct? If H-1 was applied for me even though my original I-94 was expiring in end July, why couldn't the same be done in case of H-4 for my wife?

2) Now that my wife's L2 has been extended and the new I-94 has arrived (valid till 2014), is it possible to apply for her H-4 now (COS or otherwise)? Is there any way using which that could be done without her having to leave the US?

3) In the worst case, that is if H-4 can't be applied now, what are the options? Could she go to a nearby country (e.g. Canada) to get the H-4 or does it need to be the home country only (India) ?

Please help ! Thanks in advance !

[raghvi]

Requesting advice from experts/gurus on an urgent basis.

Please find the relevant details listed below:

1) Me and my wife came to the US on a L1B visa in August 2009 (validity of both the visa and the I-94s was till end of July 2012)

2) My company applied for a conversion to L1A in March 2012 (L2 extension for my wife) which got approved in early July 2012 (new I-94 valid till end of July 2014 for both of us)

3) They also applied for a H1B (for me only through Change of Status (COS) method) in June 2012 and the same is currently under processing by USCIS

4) H-4 was not applied for my wife. They initially said that they are applying H-1B for all primary applicants and H-4s for the dependents could be added to the petition later. Now they are saying that the couldn't have applied for my wife's H-4 since there was a gap in I-94 (form end-July to October 1 2012, given that her original I-94 was expiring in end July).

5) They are also saying that since she will be out of status due to my automatic switch to H1B from L1A, she needs to leave the US before October 1, get the H-4 stamped/activated at the consulate and then return after October 1

Questions:
1) Is the statement in (4) above correct? If H-1 was applied for me even though my original I-94 was expiring in end July, why couldn't the same be done in case of H-4 for my wife?

2) Now that my wife's L2 has been extended and the new I-94 has arrived (valid till 2014), is it possible to apply for her H-4 now (COS or otherwise)? Is there any way using which that could be done without her having to leave the US?

3) In the worst case, that is if H-4 can't be applied now, what are the options? Could she go to a nearby country (e.g. Canada) to get the H-4 or does it need to be the home country only (India) ?

Please help ! Thanks in advance !

If her L2 has been approved, and she has a new I-94 valid till Jul 2014, then she can possibly apply a COS to H4. You technically should have gone from L1b to L1A, and come Oct 1st you will move from L1A to H1. Similarly, you wife would have moved from L1B associated L2 with I-94 till July to L1A associated L2 with I-94 till July 2014. A COS while in US is not possible if I-94 has expired but since your wife's I-94 never expired, she can do a COS to H4 with your approved H1 petition. The only reason this may be a problem is that your company lawyer would have applied for L1B to H1 COS rather than L1A to H1 for you, in that case technically, even you will be out of status from July till Oct this is typically what happens when one has multiple COS pending with USCIS. Looks like in June 2012 you had a COS from L1B to L1A and simultaneously had a COS from L1B to H1B. The last action rule comes into play and it gives rise to lot of status confusion. Its better to talk to an independent lawyer and take an independent legal opinion. This is my view ,not legal advice.

[InfoSeeker123]

If her L2 has been approved, and she has a new I-94 valid till Jul 2014, then she can possibly apply a COS to H4. You technically should have gone from L1b to L1A, and come Oct 1st you will move from L1A to H1. Similarly, you wife would have moved from L1B associated L2 with I-94 till July to L1A associated L2 with I-94 till July 2014. A COS while in US is not possible if I-94 has expired but since your wife's I-94 never expired, she can do a COS to H4 with your approved H1 petition. The only reason this may be a problem is that your company lawyer would have applied for L1B to H1 COS rather than L1A to H1 for you, in that case technically, even you will be out of status from July till Oct this is typically what happens when one has multiple COS pending with USCIS. Looks like in June 2012 you had a COS from L1B to L1A and simultaneously had a COS from L1B to H1B. The last action rule comes into play and it gives rise to lot of status confusion. Its better to talk to an independent lawyer and take an independent legal opinion. This is my view ,not legal advice.

Thanks Raghvi ! I will check with my company if they can apply for a COS to H4 for my wife.

Have a follow-up question - to my knowledge, COS is applied from "L" category visa to "H" category visa ("L1" to "H1") and not specifically from L1B /L1A to H1B. Is that understanding incorrect? If the above is correct, is there still a possibility that I myself be deemed out of status?

[raghvi]

Thanks Raghvi ! I will check with my company if they can apply for a COS to H4 for my wife.

Have a follow-up question - to my knowledge, COS is applied from "L" category visa to "H" category visa ("L1" to "H1") and not specifically from L1B /L1A to H1B. Is that understanding incorrect? If the above is correct, is there still a possibility that I myself be deemed out of status?

As your L1B expired July 2012, your status from End July 2012 till 01Oct 2012 is L1A. Maybe the company didn't want to take risk of your L1A rejection and H1 Cap finish hence simultaneously applied H1 too. In my opinion, there is no fool proof way of knowing what would be your status on 01 Oct 2012. When you step out of US the next time, and go for stamping, or go for GC filing there is possibility that the out of status question may come up. Irrespective, as your wife' status is still L2 hence either you get a COS applied for her , or she leaves US, gets H4 stamping done and re enters on H4. In most likelihood if they raise a RFE/221G over her status from July 2012 onwards, they would have the same question for your status from Jul 2012 too at some point of time later on. This is my opinion, not legal advice.

[InfoSeeker123]

As your L1B expired July 2012, your status from End July 2012 till 01Oct 2012 is L1A. Maybe the company didn't want to take risk of your L1A rejection and H1 Cap finish hence simultaneously applied H1 too. In my opinion, there is no fool proof way of knowing what would be your status on 01 Oct 2012. When you step out of US the next time, and go for stamping, or go for GC filing there is possibility that the out of status question may come up. Irrespective, as your wife' status is still L2 hence either you get a COS applied for her , or she leaves US, gets H4 stamping done and re enters on H4. In most likelihood if they raise a RFE/221G over her status from July 2012 onwards, they would have the same question for your status from Jul 2012 too at some point of time later on. This is my opinion, not legal advice.

Thanks for the quick reply. You are right - the reason for H1 application was the ongoing uncertainty on the fate of L1 extensions/conversions. I guess, I should also consider withdrawal of H1 (while there is still time) along with the option of COS from L2 to H4.

[kabkaba]

The above is okay, but just remember that maintaining status is your spouse's responsibility, not your employer's. So if employer does not assist in applying for change of status, your spouse will have to do it on their own.