Both H4 and F2 COS applications got approved with the same start date

[garfieldorlando]

I applied my OPT and submitted the COS application for my wife (from F1 to F2). Later on, my future employer decided to submit the H1B petition for me and the H4 COS application for my wife.

My H1B and my wife's H4 got approved first. As soon as we know the H1B is approved, we decided to withdraw my wife's F1 to F2 COS. However, it was unsuccessful. Now my wife received two approval notices, one for H4 and one for F2, both of them have the same start dates and new I94. The start dates on the approval notices of these applications:

My OPT: 12/20/2009
My H1B: 12/21/2009
My wife's F2: 12/21/2009 (approved later)
My wife's H4: 12/21/2009 (approved first)

Now the problem is what will be the status of my wife on 12/21/2009? Will there be a problem? She needs the H4 status on 12/21/2009.

Thanks!

[shervin143]

Read about the last action rule in the forum. Her status will change as per the last approved petition.

[garfieldorlando]

Read about the last action rule in the forum. Her status will change as per the last approved petition.

The problem is that both H4 and F2 have the same start date, when F2 is activated on 12/21, my status will be H1B, that means her F2 will be invalidated the same day. Does that means she will be out of status on 12/21?

[shervin143]

That is the reason why it is not advisable to have multiple pending petitions with USCIS at the same time. Even though the start dates are the same, the last petition that got approved will take precedence over the other. If F2 was approved last, then her status will change to F2 on 12/21. Which will put her in invalid status, since your status will H1B at that time. You need to file for COS from F2 to H4 or she need to leave the country and re-enter in H4 (with a valid h4 visa). I am not sure if there is a third option. Let us see what the other members have to say.

The problem is that both H4 and F2 have the same start date, when F2 is activated on 12/21, my status will be H1B, that means her F2 will be invalidated the same day. Does that means she will be out of status on 12/21?

[garfieldorlando]

That is the reason why it is not advisable to have multiple pending petitions with USCIS at the same time. Even though the start dates are the same, the last petition that got approved will take precedence over the other. If F2 was approved last, then her status will change to F2 on 12/21. Which will put her in invalid status, since your status will H1B at that time. You need to file for COS from F2 to H4 or she need to leave the country and re-enter in H4 (with a valid h4 visa). I am not sure if there is a third option. Let us see what the other members have to say.

Thanks for the information, shervin143
Her current status is F1, so we should fill another I539 NOW to request her status change from F1 to H4, right?

[shervin143]

That is correct.

Thanks for the information, shervin143
Her current status is F1, so we should fill another I539 NOW to request her status change from F1 to H4, right?