Out of status when AOS was filed

[melamela]

Hello All,
I co-filed I-485 as a dependent on my spouse's AOS application.
My I-94 (H1B) expired May 10, I-485 was filed May 14, H1B extension (filed in March; premium processing but got RFE) was denied on May 18. So I was out of status when AOS was filed.
The only option seems to be - withdraw my application, get H4B and re-file AOS.
I am hoping that someone could help us out by either confirming this approach or if alternatives exist.
Also, what are the chances of H4 being denied since I had filed for AOS (so have shown immigration intent)?
Can the 245k option be used here?
Thanks much for your help.
Best Regards.

[azblk]

I might be wrong but i think you were still "in status" until May 18th when H1B extension was denied. Consult with a competent lawyer though.

[newacct]

Hello All,
I co-filed I-485 as a dependent on my spouse's AOS application.
My I-94 (H1B) expired May 10, I-485 was filed May 14, H1B extension (filed in March; premium processing but got RFE) was denied on May 18. So I was out of status when AOS was filed.
The only option seems to be - withdraw my application, get H4B and re-file AOS.
I am hoping that someone could help us out by either confirming this approach or if alternatives exist.
Also, what are the chances of H4 being denied since I had filed for AOS (so have shown immigration intent)?
Can the 245k option be used here?
Thanks much for your help.
Best Regards.

Since you bring up 245(k), I am assuming your spouse is in an employment-based category? If so, yes, according to INA 245(k), as long as you haven't been out of status or working unauthorized for more than 180 days since the most recent entry, it doesn't matter if you are in status or not at the time of filing I-485.

I might be wrong but i think you were still "in status" until May 18th when H1B extension was denied. Consult with a competent lawyer though.

No. Having a pending application doesn't give you status.