H1B under extension and going for H4 stamping

[ssbreddy]

Hello Members,

Following is the situation.

I am on H1b and expires in 2017. My wife is also on H1b and her H1B expired on June 30th and her employer had filed for extension before the expiry of the petition i.e they applied 15 days before the expiry and on 15th June.

All looks good till now, but the extension was applied for only 2 months and the petition is pending with USCIS. Now the extension applied is only till 30th August and I think we might not get the result by that time. So we are planning for her to get out of US in last week of August and get her H4 stamped based on my petition and re-enter US on H4 status before 30th August.

Question is:
1. What happens to her application with USCIS?
2. What we are planning is good or any other things we need to take care off.
3. What if USCIS approves her application after she enters US on H4 status, but remember that the application is asking the extension for only 2 months till 30th August. What will happen in this case.


Please suggest.

[shervin143]

1. What happens to her application with USCIS?
>>> H1B might get approved for consular process (approval without a new I-94 since she left U.S).

2. What we are planning is good or any other things we need to take care off.
>>> One issue is that approval will come without a new I-94 attached. In such case, the time spent in U.S post the last I-94 expiry date will be treated as illegal stay and you will need to mention that in all the visa applications going forward.

3. What if USCIS approves her application after she enters US on H4 status, but remember that the application is asking the extension for only 2 months till 30th August. What will happen in this case.
>>> This will complicate things. If she enters U.S in H4 status and if the H1B approval comes later, then her status will change to H1B and you will have to file a COS back to H4 or leave and re-enter back in H4 visa.

The best option that I would suggest is to file a COS from H1B to H4 right now and stay in U.S. There is no need to leave the country to get the H4 stamped to return back in H4 status. Since H1B extension was filed prior to her I-94 expiry date, she can now file a bridge petition requesting a COS from H1B (pending) to H4. Stay in the country until decision is made.