Can candidate hold both H1B and H4 Visa at same time for the below scenario?

[Somik]

Hi,

I am a H1B VISA holder and my wife is on H4 now in USA. My H1B VISA will expire on Aug'13 and i will apply for a extension somewhere around June-July'13.
My wife wants to work in USA. My plan was that i will apply H1B(premium) for my wife via a consultancy firm on April'13 to make sure i get the result by May'13. Now considering the scenario that my wife's H1B Visa got approved which will be valid from 1st Oct'13 can someone please reply to my queries below:

> Can i apply for H4 visa extension for my wife as well on June'13 along with mine ? If yes, and if our extensions are approved - will it somehow invalidate the H1B which she got ? Is there anyway that she can claim to stay on H1B?
> If you suggest that i should not apply for her H4 extension since she will have H1B from Oct'13, then what will be her status in the window Aug'13 - Sep'13 when she neither have an H4 nor a H1B?
> I am not sure how one should plan for to handle this situation. Any kind of suggestion would be helpful.

Thanks in advance.

Regards,
Somik
email ID: [email protected]

[raghvi]

Hi,

I am a H1B VISA holder and my wife is on H4 now in USA. My H1B VISA will expire on Aug'13 and i will apply for a extension somewhere around June-July'13.
My wife wants to work in USA. My plan was that i will apply H1B(premium) for my wife via a consultancy firm on April'13 to make sure i get the result by May'13. Now considering the scenario that my wife's H1B Visa got approved which will be valid from 1st Oct'13 can someone please reply to my queries below:

> Can i apply for H4 visa extension for my wife as well on June'13 along with mine ? If yes, and if our extensions are approved - will it somehow invalidate the H1B which she got ? Is there anyway that she can claim to stay on H1B?
> If you suggest that i should not apply for her H4 extension since she will have H1B from Oct'13, then what will be her status in the window Aug'13 - Sep'13 when she neither have an H4 nor a H1B?
> I am not sure how one should plan for to handle this situation. Any kind of suggestion would be helpful.

Thanks in advance.

Regards,
Somik

email ID: [email protected]

The last action rule comes into picture and there is always a doubt on which status one is when one has multiple approvals/COS applied.

If and when your Wfie's COS to H1 gets approved she will receive a new I-94 with validity from 01-Oct-2013. Also, when you apply for your H1 extension and her H4 extension in order to stay beyond August 2013, if and when the extension gets approved a new H1 I-94 for you and a new H4 I-94 tied to your approved H1 extension will be issued to your spouse. This will create a conflict as now your spouse ends up with 2 I-94s as of 01-Oct-2013. One on H4 and the other for her H1.

The only foolproof way of your spouse not going out of status on H4 from August 2013 till 0ct 2013 as well as be on H1 from 01-Oct-2013 is to get your H1 extension as well as her H4 approved, and then to leave US, before 01-Oct-2013, get H1 stamped in passport and return on H1, she on her H1 and you on your H1.

This is my opinion not legal advice.

[kabkaba]

This is what your wife can do.

Her employer can file petition on Apr 1 without change of status.
Then your employer can file petition for you and your wife's extension should be included.
After her extension is approved, there are two options.
1. Her employer can file amendment to change her status and she can start working on effective date after amendment is approved.
2. She can leave the US and return in H1 status to start working.

[Somik]

This is what your wife can do.

Her employer can file petition on Apr 1 without change of status.
Then your employer can file petition for you and your wife's extension should be included.
After her extension is approved, there are two options.
1. Her employer can file amendment to change her status and she can start working on effective date after amendment is approved.
2. She can leave the US and return in H1 status to start working.

What if i apply H1B for my wife via primium processing on Apr'13. Even with RFE i will get a result by May'15th whether it is approved/rejected. By May'30th i can expect her I797 form and I94. After that i can apply for my H1B extension.
Now the question that is bothering me is - What will be the 'effective date' on I797 that she will get ? Will it be any date between Apr'13 to May'13? Or it is always 1st Oct'13 by default - irrespective of when petition was submitted/approved?
In this scenario am i wrong about any assumption?

Regards,
Somik

[raghvi]

What if i apply H1B for my wife via primium processing on Apr'13. Even with RFE i will get a result by May'15th whether it is approved/rejected. By May'30th i can expect her I797 form and I94. After that i can apply for my H1B extension.
Now the question that is bothering me is - What will be the 'effective date' on I797 that she will get ? Will it be any date between Apr'13 to May'13? Or it is always 1st Oct'13 by default - irrespective of when petition was submitted/approved?
In this scenario am i wrong about any assumption?

Regards,
Somik

2014 Fiscal year Fresh H1 earliest start date can only be 01-Oct-2013. Irrespective of when the petition was filed premium or normal.

This is my opinion not legal advice.