H4 Expiring while my H1 in RFE pending... Please help!!

[My_ques]

Hi
I have applied for H1B and it is in RFE. My H4 visa is expiring on 20th Sept. I'd like to wait till I know the result of H1B, and if rejected, only then apply for H4 extension.
My 1st question is, by 20th Sept if H1B result doesn't come, I will be staying in US while a visa is in process. Is it OK?
2nd question is, in Oct/Nov when probably H1B result comes, and is denied, then can I file H4 and stay in US? Is there any grace period for that? If I cant stay, can I travel to India, with expired I94?

[kadkhiq81]

H4 Expiring while my H1 in RFE pending... Please help!!

Hello,

I would recommend you to convert your H1 to premium to get the result immd.you should have done that atleast in the mid of Aug. It is not too late though.

1. What is your current I 94 expiry? Was your H1 applied as a COS or consular process?

This is my opinion..

[My_ques]

Hello kadkhiq81,
Thanks for the response!

My employer saying to do Premium Processing is too risky and he is not willing to do. I-94 expiry is 20th Sep'2014 and this is COS process. Do you think I will be out of status if H1 denied for say Nov 10th?

[raghvi]

Yes you would go out of status, in fact if this is a fresh H1, a COS would not make sense without H4 extension approval first. For H1 COS to be effective from 01-Oct-2014, you should be in valid status on 30-Sep-2014, you would not be in a valid status on 30-Sep-2014, unless you apply and get H4 extension. If you dont want to leave US I would suggest you apply for H4 extension before 20-Sep-2014, and let H1 process on its own. Worst case, your H1 would start much later, provided H4 extension is approved.

If you are in a hurry to move to H1, then as Kadkhi suggested, upgrade H1 processing to premium and convert it to consular process. Leave US before 20-Sep-2014, and go for H1 stamping with approved petition , and return on H1 visa.

This is my opinion not legal advice.

[My_ques]

Hi,

Thanks for the reply Raghvi & Kadkhi.

So, shall I apply H4 extension also now, so that both of them in the process, then is there any chance of rejection for H1 because H4 now works as COS(means do they think that I'm applying for H4 not wanting H1?). Am I thinking wrong? Please share your ideas with me to go with applying H4 now or not?

My husband's lawyer saying the same as you (Raghvi) suggested to apply H4 and the other my lawyer saying NO to it. Me and my husband both in a confusion status now.

Thanks for your thoughts!!

Yes you would go out of status, in fact if this is a fresh H1, a COS would not make sense without H4 extension approval first. For H1 COS to be effective from 01-Oct-2014, you should be in valid status on 30-Sep-2014, you would not be in a valid status on 30-Sep-2014, unless you apply and get H4 extension. If you dont want to leave US I would suggest you apply for H4 extension before 20-Sep-2014, and let H1 process on its own. Worst case, your H1 would start much later, provided H4 extension is approved.

If you are in a hurry to move to H1, then as Kadkhi suggested, upgrade H1 processing to premium and convert it to consular process. Leave US before 20-Sep-2014, and go for H1 stamping with approved petition , and return on H1 visa.

This is my opinion not legal advice.

[raghvi]

They wont assume any such things. All applications are treated independently, and in my opinion applying H4 ext would be the right thing to do. The choice basically is between Time and Money. Applying H4 ext would take time and delay your move to H1. While upgrading H1 to premium and leaving US to go for stamping would cost money.

How confident are you of the H1 employer providing you with genuine document for your H1 stamping?

This is my opinion not legal advice.

[kadkhiq81]

H4 Expiring while my H1 in RFE pending... Please help!!

Raghvi,

I agree with your point to apply H4 extension to cover up the gap between 20 sep to Oct 1 however what would happen if this is the scenario,

1. H4 extension applied, H1 got approved during the wait, H4 extension approved in few days after, As per the last action rule, She would be back to H4 again and need to apply for a another H1 COS?

This is my opinion..