H4 for my wife Employer for get to file

[ranu]

Hello Experts,
I am in USA on H1B. My visa is expiring on September 11,2011 but I just got my first extension. So I can stay here until 2014.
My wife is on H4 visa. And my vendor is applying for her H1B (Premium processing).
By mistake, my employer forget to put her H4 extension (I just got my h1b extension)
My Question is:
Can my employer able to put her h4 extension now?
Is there any premium processing thing for H4?
Or
Can my vendor just file for her H1b in premium processing? And there is no need for H4 extension?
Please suggest, I just got 1 month to take action?
I appreciate your prompt response.

[shervin143]

Can my employer able to put her h4 extension now?
>>> Yes. Her H4 extension petition need to reach USCIS before her I-94 expires.

Is there any premium processing thing for H4?
>>> No.

Or
Can my vendor just file for her H1b in premium processing? And there is no need for H4 extension?
>>> Is this her first H1B petition? If she already had a previous H1B petition and never used all 6 years in that CAP, then the CAP from that petition can be used to file the COS from H4 to H1B and request an immediate start date. In that case, there is no need to file the H4 extension now. If not, then the H4 extension need to be filed and the H1B COS should be filed based on the pending H4 extension. She need to maintain a valid H4 status until the H1B gets approved.

In case both H4 and H1B are filed, then the last action rule takes effective. If the H4 becomes effective after the H1B, then her status will change to H4 and she cannot work.

[ranu]

Thank you shervin143,

This is her first H1B.

I will ask my vendor to file her H4 before applying H1B.
Do you have an Idea,How long it will take to get H4 approved ?

And Once my employer file her H4 and suppose it will take 2 months to get approve,Say October 15 2011,
Can she be able to stay in USA till October 15, as her H4 expiring on Sep 11,2011 ?

Once again I Appreciate your help.

Thank you,
Ranu

[kabkaba]

When does her I-94 expire? That's the first question you need to answer.
Any change of status (to H1) or extension of status (H4) application must reach USCIS before her I-94 expires, otherwise it will not be approved and any stay beyond I-94 is illegal. Although, companies assist in filing extensions, it is her responsibility.
In case of H1, if her I-94 has expired, the employer may still file it but it may be approved as consular processing meaning that she will have to leave the US, get an H1 Visa and return in order to start working.

[ranu]

Her I94 is expiring on sep 15th 2011,My employer filing her H4 tomorrow.And also attorney is saying. Once we will get the receipt for H4.after that we will file her H1B in premium processing.
I had discussed the case, ”what if h4 extension comes after H1b”
He said we are filing H4 before h1b,so don’t worry
Please suggest…is it ok???

[shervin143]

That is not correct. When the petition is filed doesn't matter. If the H4 extension comes after H1B approval, then her status will change to H4 and she can no longer work. Search and read about the last action rule.

[kabkaba]

When the H1 petition is filed in premium, they will get a decision in 15 days and there is no premium for H4 extension and hence it will by default come later than H1. To avoid any complication, write a cover letter with the H4 extension that her employer is planning to file H1 starting from Oct 1 (or whatever date they want) and H4 extension should only be approved up to that H1 date. Write this in clear bold letters and highlight it.
Also add H4 application receipt with the H1 petition showing that even if her I-94 expires on Sep 15, she has timely filed H4 extension before that date and if approved her H4 status will be valid up to Oct 1. Make sure this employer's attorney has sufficient experience and discuss the whole thing in detail with them. Alternatively, you can consult your own experienced attorney.

[ranu]

Hi Experts,

Sorry for the late posting, My Employer has filed my wife’s H4 Extension almost 2 week back. We also got receipt number for the same. It s been 2 week now but USCIS website does not showing any status like: accepted or in Process.

Please advice, how long does it take to approve H4? My Wife’s H4 is Expiring on Sep 15th 2011; does she need to leave the country, if we don’t get approval before Sep 15th, 2011?

On H1B front, my employer spoke to their attorney about this scenario and they told me, if everything went well, they will file H1B in the last week of September.

[kabkaba]

If the receipt date on the receipt notice for I-539 is before her I-94 date, she is allowed to stay in the US while the I-539 remains pending. (Even after her I-94 expires). It take 2-3 months to get a decision.

Her employer should attach a copy of I-539 receipt with the H1 petition so that H1 may be approved with change of status.

[ranu]

Hi Experts,

We are still waiting for my wife's H4 approval and our employer is also waiting for the same.
Now, Its almost been 2 Months,How long does it take to get H4 approval?
And also,
Please tell,Till what month we can file for her H1B for the 2012 (Current) H1B Cap.


Thanks,

[shervin143]

We are still waiting for my wife's H4 approval and our employer is also waiting for the same.
Now, Its almost been 2 Months,How long does it take to get H4 approval?
>>> Ussually 2-3 months. In some case it takes more than 3 months. If it is more than 90 days, then you can take an infopass appointment to discuss the case with the USCIS officials.

Please tell,Till what month we can file for her H1B for the 2012 (Current) H1B Cap.
>>> You can file it as long as the CAP remains open. Check the uscis.gov for the latest CAP information for 2012.