Need assistance for my wife's H4

[rkj251]

Hi there,

My Wife has a H4 that was due to expire in Oct 2013. In 2013 we had applied for her H1B and her H1B was in process.
The process was delayed and in October 2014, we applied for her H4 through my company. In Dec 2014, the H1B was denied, and now we have an RFE on her H4 application.

I have 2 questions here:
1. Due to the H1B being denied, does it throw her out of status?
2. Having an overlapping H4 case, would it help her extend the H4? If not what are the options?

My case is very complicated and would appreciate any feedback.

[raghvi]

Hi there,

My Wife has a H4 that was due to expire in Oct 2013. In 2013 we had applied for her H1B and her H1B was in process.
Looking at these delays, in October 2014, we applied for her H4 through my company. In Dec, the H1B was denied, and now we have an RFE on her H4 application.

I have 2 questions here:
1. Due to the H1B being denied, does it throw her out of status?
2. Having an overlapping H4 case, would it help her extend the H4? If not what are the options?

My case is very complicated and would appreciate any feedback.

What is the RFE for? Did you apply H4 Extension after her H4 I-94 expiry?

I believe the Cap was already closed by Oct 2013, so was H1 applied on the basis of an older H1?

1. As long as H4 extension was applied before her I-94 expiry , I dont think she will be considered out of status but if it was applied after her I-94 expiry she is currently out of status as H1 is denied.
2. If H4 extension was applied after I-94 expiry, then best option would be to leave US, go for fresh H4 stamping, and re enter on new H4 visa. I do hope that you have been maintaining valid H1 status by working and getting paid as per LCA.

This is my opinion not legal advice.

[rkj251]

The H4 RFE is on her previous status, before we had filed for her extension.

The issue here was, her H4 expired in 2013 and we never applied for H4 extension, as we had the H1B application in queue (waiting for an approval).
After the government shutdown, things slowed down, and finally we got the denial letter in Dec 2014. I had applied for her H4 extension due to all these delays in Oct 2014, on which we have the RFE.

Yes I'm on my valid H1 and have been receiving my regular paystubs.

So per your suggestion, even if I respond to the H4 RFE, the H4 extension would be denied?

[raghvi]

The H4 RFE is on her previous status, before we had filed for her extension.

The issue here was, her H4 expired in 2013 and we never applied for H4 extension, as we had the H1B application in queue (waiting for an approval).
After the government shutdown, things slowed down, and finally we got the denial letter in Dec 2014. I had applied for her H4 extension due to all these delays in Oct 2014, on which we have the RFE.

Yes I'm on my valid H1 and have been receiving my regular paystubs.

So per your suggestion, even if I respond to the H4 RFE, the H4 extension would be denied?

It was very careless of you to let this drag on for so long.The government was shutdown for barely a few weeks that might have delayed decision making only for a few weeks, I feel it was something else that delayed H1 decision so long.

Anyhow, I believe without a valid I-94 and legal status your spouse has been out of status and illegal for over a year now. Such long out of status period can be very problematic and might trigger a potential ban too. Talk to an attorney immediately.

This is my opinion not legal advice.