Help! L1 to H1 COS approved wife H1 inprogress

[lookforprashant]

Hi,

I was working on L1B and my wife was working on L2. Her company filed for her H1 with COS.

My L1 was due for extension so meanwhile my company also filed for my H1 with COS thinking L1 extension in this economy is a problem. Now my H1 COS got approved effective 15th Jan and we are still waiting for her H1.

So my question is as her H1 was filed on the basis of my L1 which is not valid now as I got converted on H1 then what is her status?

Can she work as of date as her company has already applied for her H1 or she has to stop working?

If I apply for her H4 COS now and then later both H1 and H4 comes then what happens? Can she select H1 COS and reject H4 COS?

I will really appreciate if any senior members or people who have gone through the same situation can help me with this.

Thanks,
Ram

[shervin143]

So my question is as her H1 was filed on the basis of my L1 which is not valid now as I got converted on H1 then what is her status?
>>> She is out of status. Better to ask her employer to upgrade her case to premum and get the result within 15 days.

Can she work as of date as her company has already applied for her H1 or she has to stop working?
>>> She cannot work until her H1B gets approved. She no longer hold the L2 status since you have changed to H1B.

If I apply for her H4 COS now and then later both H1 and H4 comes then what happens? Can she select H1 COS and reject H4 COS?
>>> Search and read about the posts related to thelast action rule. Her status will change as per the last I-94 that she receives. If H4 gets approved last, then she will not be able to work.

[lookforprashant]

Thanks shervin.

Regarding your first answer below.

So my question is as her H1 was filed on the basis of my L1 which is not valid now as I got converted on H1 then what is her status?
>>> She is out of status. Better to ask her employer to upgrade her case to premum and get the result within 15 days.

If she has already applied for H1 before my L1 status changed then how she becomes out of status? Her status should be H1B untill the date we receive anything from USCIS. I understand that she cannot work.

[shervin143]

She will not be in H1B status until the COS to H1B gets approved. If you believe that she is currently in H1B just because the petition is filed, don't you think that she will be able to work now in H1B status rather than to wait until the H1B approval? That is not the case. Until the COS gets approved, she will remain in L2 status. L2 status depends on L1 maintaining the valid status. But since you are no longer in L1 status, she is out of status on L2.

[lookforprashant]

Thanks for the reply. I appriciate time you are putting.

[kabkaba]

The above advice is good, but looking at the complexity of your case it is good if you consult an experienced immigration attorney.

[lookforprashant]

Thanks. We consulted her company as well as my company attorney. Both said she cannot work but as her H1B COS case is with USCIS, she is not out of status unless it is denied. They cannot go for premium processing at this time.

[kabkaba]

I concur.
I think she is not out of status or illegal until H1 decision is received but she cannot work.