Filing H1b and H4 extension in the month of April.

[subhayan1]

Hello All,

I am facing a complicated situation about my wife's Visa.
My H1B visa is getting expired on 30th April 2016 and my company is ready to file for an extension. Now I am facing a situation here. With my H1B my company will file H4 extension for my wife, but we will file fresh H1b for my wife in the month of April.

1) I understand if we file for fresh H1B and H4 extension, then the visa for which we receive latest approval will hold true.
So If my wife files for a fresh H1B in Apr-2016 and it gets approved by April end and then if she receives the approval for H4 extension then her H1 will not be valid anymore as her H4 extension approval came after her H1 approval . Is that correct?

2) If that is the case then we can't file for her H4 extn before we are sure about her H1 visa status (lottery result). For that we need to wait till June 1st week 2016. But as my wife's H4 will expire on April-2016 she can't stay here in the US after that period if we don't file for her extension earlier.

Please advise the correct approach over here. Seems like the "timing" is a big problem over here.

Thanks and Regards
Subh

[shervin143]

I am guessing you will file your wife's H1B under a brand new CAP.In which case, her H1B effective date will be Oct 1st 2016 or later. She need to be in H4 until Oct 1st 2016 so you have to file her extension. Advisable to file the H1B and H4 extension next month (extension can be filed within 6 months from the I-94 expiry date) and the H1B / H4 extension early and later file the H1B for your wife.

[subhayan1]

What if H4 extn gets approved after H1B approval?

I am guessing you will file your wife's H1B under a brand new CAP.In which case, her H1B effective date will be Oct 1st 2016 or later. She need to be in H4 until Oct 1st 2016 so you have to file her extension. Advisable to file the H1B and H4 extension next month (extension can be filed within 6 months from the I-94 expiry date) and the H1B / H4 extension early and later file the H1B for your wife.

Thanks Shervin for your response.
But i am wondering if my wife's H4 extension approval comes after her H1B approval, will her H1b approval gets void? Is that is the case then there will be a risk to file for her H4 extension as we can not be 100% sure about the exact date of her H4 extn approval.
I really don't want her H1B approval to get void due to H4 extn. so wanted to understand the policy/Law.

[shervin143]

Well, then the only option left for you is to not file her H4 extension and send your wife out of the country before April 30th to avoid illegal stay and file her H1B for consular process. Upon approval she will need to get the H1B visa stamped to re-enter in H1B status.

If you file your H1B + H4 extension now, then a decision will be made on those petition well before Oct 1st 2016. Her H1B petition will be effective only on or after Oct 1st 2016. This will be a problem only if you file her H4 extension and H1B in the month of April.

Thanks Shervin for your response.
But i am wondering if my wife's H4 extension approval comes after her H1B approval, will her H1b approval gets void? Is that is the case then there will be a risk to file for her H4 extension as we can not be 100% sure about the exact date of her H4 extn approval.
I really don't want her H1B approval to get void due to H4 extn. so wanted to understand the policy/Law.

[subhayan1]

Well, then the only option left for you is to not file her H4 extension and send your wife out of the country before April 30th to avoid illegal stay and file her H1B for consular process. Upon approval she will need to get the H1B visa stamped to re-enter in H1B status.

If you file your H1B + H4 extension now, then a decision will be made on those petition well before Oct 1st 2016. Her H1B petition will be effective only on or after Oct 1st 2016. This will be a problem only if you file her H4 extension and H1B in the month of April.

So that means I can apply for her H4 now (on 1st Nov) and then apply for her H1 on Apr-1st.
Hopefully her H4 will be approved before she filed for H1 (on 1st April).
In worst case if she receives h4 extn approval after filing for H1 petition (and approval) also it should not be an issue as her H1B petition will be effective only on or after Oct 1st 2016.
Please correct me if I am wrong.

[ker2usa]

So that means I can apply for her H4 now (on 1st Nov) and then apply for her H1 on Apr-1st.
Hopefully her H4 will be approved before she filed for H1 (on 1st April).
In worst case if she receives h4 extn approval after filing for H1 petition (and approval) also it should not be an issue as her H1B petition will be effective only on or after Oct 1st 2016.
Please correct me if I am wrong.

You are unnecessarily worrying. If you apply for an H4 extension now along with your H1B extension, you should get it approved well before April 1st. Even if you end up with an RFE, you can still get it resolved pretty quickly. Even if her case goes pending after April 1st, the H1B will only be approved by mid-June or after. That's plenty of time.

[shervin143]

That is correct.

So that means I can apply for her H4 now (on 1st Nov) and then apply for her H1 on Apr-1st.
Hopefully her H4 will be approved before she filed for H1 (on 1st April).
In worst case if she receives h4 extn approval after filing for H1 petition (and approval) also it should not be an issue as her H1B petition will be effective only on or after Oct 1st 2016.
Please correct me if I am wrong.