H1 to H4 & Green card

[sundarvarad]

Hi all,
I have two questions

a. My spouse is in h1 which is valid till june 2010 and her employer has filed her extension and recd the reciept. Now if i file her h4 (I m in h1b visa), will it jeopardize the process? Is this legally allowed? Also, she is in maternity leave and her last paystub was in Dec 2009. will there be any problem?

b. My H1 b expires in june 2011 and I have filed Green card (EB2 category) in feb 2009 and it is in PERM audit. Can I apply for h1b extension when it is due next year? if so, for how many years? (Assuming it is still in PERM audit during that time)

Thanks.

[milda]

Hi all,
I have two questions

a. My spouse is in h1 which is valid till june 2010 and her employer has filed her extension and recd the reciept. Now if i file her h4 (I m in h1b visa), will it jeopardize the process? Is this legally allowed? Also, she is in maternity leave and her last paystub was in Dec 2009. will there be any problem?
There shouldn't be a problem if you have valid doctor certificate for her.
b. My H1 b expires in june 2011 and I have filed Green card (EB2 category) in feb 2009 and it is in PERM audit. Can I apply for h1b extension when it is due next year? if so, for how many years? (Assuming it is still in PERM audit during that time)
If it is still in audit at that time and if you are about to finish your 6yrs then you will get 1yr extension as PERM still not rejected. Even if you have approved PERM by that time then also, you will get 1yr extension. But by luck, if you are getting your perm + I140 approved by that time and your 6yrs finished then you should get another 3yrs extension.

Thanks.

[Note:- I am sharing my views, contact your attorney for the best advice.]

[sundarvarad]

Thanks a lot.
one more question, if my spouse is h4, will the h1 petition be still valid? if not, if she wants to work again, does she needs to go through the h1b cap/ lottery?

[sk4ih]

H1 would be valid.
Apply for CoS from H4 to H1 anytime before H1 petition expiry.

[sundarvarad]

Hello all,
Here is the reply I got from my Employer for H1 to H4 conversion since my wife has applied for H1 extension thru her employer

"The issue here is that if the H-4 gets approved and then the H-1 gets approved, she will again be in H-1 status. If her H-4 gets approved after the H-1B is approved, she will not be eligible to work anymore because she will be in H4 status. Since we are not the H1B employer for her, we can not provide further legal guidance"

My Wife's employer says that "we cannot file H4 visa since H1 B extension is in process and once she gets H1B extension approval notice, she can transfer to H4"

which is correct? I m confused now

Also, if i go ahead and file H4 for her and if she resigns from the company, will the H1b be still valid? Are we violating law?

thanks

[shervin143]

"The issue here is that if the H-4 gets approved and then the H-1 gets approved, she will again be in H-1 status. If her H-4 gets approved after the H-1B is approved, she will not be eligible to work anymore because she will be in H4 status. Since we are not the H1B employer for her, we can not provide further legal guidance"
>>> This correct. As per the last action rule, her status will change to whatever approval that comes in last (Provided the approval comes with a I-94).

My Wife's employer says that "we cannot file H4 visa since H1 B extension is in process and once she gets H1B extension approval notice, she can transfer to H4"
>>> Employer has nothing to do with H4. You can go ahead and file the H4 for her based on your documents and her latest pay slips. When was her H1B extension filed? Give it a little bit of time and then file for H4, that way, H4 comes after H1B approval. Alternatively, your spouse's employer can withdraw the application to extent the H1B status.

[sundarvarad]

Thank you for your reply. H1B extension was filed on dec 30 2009. It is still under Initial review? The current processing time is 2 months. But I know it might vary on a case to case basis. Any idea how long it would take?

Also what will happen if her h1 gets approved after H4 is filed or approved? She wil not have an employer for h1 since she is going to leave the company. Can she be in H4?

[shervin143]

H1B extension was filed on dec 30 2009. It is still under Initial review? The current processing time is 2 months. But I know it might vary on a case to case basis. Any idea how long it would take?
>>> Usually 2-3 months by normal process and 15 days by premium.

Also what will happen if her h1 gets approved after H4 is filed or approved? She wil not have an employer for h1 since she is going to leave the company. Can she be in H4?
>>> If the H1B gets approved after the H4 approval, then her status will change to H1B. You need to immediately file for COS to H4 again or she will need to leave the country and return back in H4 visa (Need to get the H4 stamped if she doesn't already have a valid H4 in her passport).

[sundarvarad]

Is it possible for the employer to withdraw H1 B extension application? if so What is the procedure? can you give the link to uscis site for withdrawal of petition?

Also, the h1b extn was filed in dec 2009.. any idea how long will it take? is it safer to get h1b approved and then file for H4?

[shervin143]

Is it possible for the employer to withdraw H1 B extension application? if so What is the procedure? can you give the link to uscis site for withdrawal of petition?
>>> The employer just need to send a letter to USCIS stating that they want to revoke the application that they submitted earlier. They will need to mention the receipt number that was received upon submitting the petition earlier.

Also, the h1b extn was filed in dec 2009.. any idea how long will it take?
>>> I already answer this question in my previous reply. It is usually 2-3 months. If it is more than 90 days, then your company attorney can take an info pass appointment to check the status.

is it safer to get h1b approved and then file for H4?
>>> You can do that. You should be ready to file the COS to H4 immediately upon the H1B approval (That way no pay slips are needed).