RFE H-1B,wife's H-1B petition pending.

[supender]

I changed my employer on 21 feb 2008 after getting the recipt notice for H-1B transfer.My I-94 expired on 15 may 2008, and I got an RFE on 30 th may 2008.Thet asked for financial documents from my new employer and my pay stubs from last 3 months from my prior employer.Since I was on personal unpaid leave of absence for over 3 months owing to my visit to India and other personal reasons.I submitted my leave sanction letter from my prior employer( who actually terminated my services, after the leave was over,2/25/2008.)and pay stubs for 3 months before the leave.
On the other front, my wife who was on H-4B filed for her H-1B and got the recipt notice dated 14th april 2008.My question is

Q1. if I get denied for my H-1B transfer.Do my wife has to leave the country and re-enter after using her approved H-1B petition(provided she gets approved).Or it would legal for her to stay in US and satert working on 1 October 2008, the satrt date on her petition.

Q2.In case of denial of my H-1b Transfer application.Can I reenter through mexico or some place throgh a new H-1B petition or H-4 petition or do I have to go back to India.

Please help me figure out these question.My attorny is not very helpful.I am looking for all options available to me before I go back and talk to him.?

[txh1b]

a. Yes. Both of you have to leave the US if you are not in H1b status, the H4 status also ceases to exist. She has to enter with a H1b stamp later on.
b. You are out of status from the date of denial. You can get a new H1b petition as a CP and get a visa stamp enter. For a H4, you need to wait outside until Sept 20th and re-enter with the new stamp.

Fire the attorney and get a new one. Why are they getting paid? to answer your questions.

One message is good for our attention. Need not post the same thing many times and that will not get you quick answers. Please go ahead and delete other threads on the same topic.

[supender]

I cant figure out how to delete my other posts.They got posted by mistake.
Can I get my visa stamped with a new petition in mexico.I got my H-1B in delhi,India,my home town.Thanks for the quick reply

[txh1b]

On what status will you stay till the new petition gets approved? You can get it stamped anywhere. If you have a valid stamp, all you need to do is travel and get an I-94. Does not even need a new visa stamp. Remember, third country is not obligated to issue a visa and can redirect to your home consulate.

Click on your duplicate posts, edit post, and delete the other posts.

[supender]

I got this DOCUMENT http://www.uscis.gov/files/article/c2_english.pdf on USCIS website.My understanding or Interpretation of the answer to the question IN THIS DOCUMENT " What if I fill on time but USCIS does not make decision before my I-94 expires?" is since my wife applied for her H-1b(14 April 2008) before her I-94 expired (ie 15 may 2008),even though her H-4B extension is denied ,she has another H-1B petition pending(for change of status).Provided she does not get denied on her H-1B she should never be out of status.Texas I am not sure what did u mean by valid stamp.Our H visas expired on 15 may 2008.

I am also unsure why dod I have to wait till sept 20 to file for my H-4.Please elobarate.

[DMX17]

Did you read the question, "Can I change my status if my status already expired?" , on page 2 of the same article?

The thing "Texas" (? ) said was once you are out of status (which you and your wife will be upon your transfer denial), it's best to leave the country or change to some other status.

In your wife's case, even if she applied for a COS to H1 when she is in status and her I-94 is valid, this situation changes and she becomes out of status before the H1 start date. The COS status will be approved on the basis (assumption after verification perhaps) that she has been and will maintain H4 status till Oct 1st. This obviously will be the case if the transfer/extension is denied.

[txh1b]

The COS from H4 to H1 may not get approved as the H4 was/has expired as of May 15th and they probably did not know of a pending H4 extension when the H1b was applied. You need to wait till Sep 20 to re-enter US on a H4 that accompanies a H1b holder that starts Oct 1st.

Furthermore, any other status changes applied after the initial I-94 expiry will not be bridged as authorized stay due to a pending application is not considered status by USCIS.

[txh1b]

Period of Authorized stay and a memo regarding the same issue posted for future reference.

http://www.uscis.gov/files/pressrelease/PofStay4023Pub.pdf

[supender]

Thanks a lot of the reply.I get the point,I have applied for my daughter's visa for India(who is a US citizen), in case we need to leave. We made sure that with my wife's H-1B petition her attrorney attached the recipt notice for her H-4 transfer.At this point I am trying to wrap up as many things as possibe and keeping my fingers crossed.Thanks for your advise.

[txh1b]

Good Luck!