H1 extension pending and COS from H1 to H4

[scorp_min]

My H1B and I94 expires on Jan 13th 2012. If my H1 extension is initiated and filed by my employer and decision is pending, is it still possible for my husband's company to initiate my Change of Status (COS) from H1 to H4 based on his current H1B/I94(valid till 2014)?

If yes, How many days in advance should I apply for COS from H1 to H4? How long will it take to get a decision on the COS?

If it is possible to apply for COS from H1 to H4 while my H1B Extension is still pending,
1) If my COS to H4 gets approved while H1 extension is still pending,
a) What is my status if H1 also gets approved later?
b) What is my status if H1 gets rejected later?

2) If my H1 extension gets approved while COS from H1 to H4 is still pending, can I withdraw my application for COS to H4?
a) What is my status if COS to H4 also gets approved later?
b) What is my status if COS to H4 gets rejected later?

3) If my H1 extension gets rejected while COS from H1 to H4 is still pending, what is my status? can I continue to stay in the US?

4) If my H1 extension gets rejected and then the COS to H4 gets approved, what will my status be? Can I continue to stay in the US based on my approved H4 or should I travel outside US and reenter with a new visa?

Appreciate responses.

[kabkaba]

This is complicated. Do you want to stop working or quit the job? Only then you should apply for change of status to H4. Remember your husband's employer may help you file it but it is your application and you have a choice whether to file it or not.

If you want to continuously work your H1 employer, just have them file extension before your I-94 expires. If extension is pending while I-94 expires, you can continue working.

Instead of answering hypothetical questions, tell us what you want to achieve and we may be able to better help you.

[scorp_min]

Appreciate the response.

Here is the real dilema. I really like to continue working on my H1B. My employer will surely file my H1 extension. I am expecting a baby in Jan. My concern is that just in case, my H1 extension gets rejected for some reason, I will not be in a position to travel back to India immediately. So, in order to be prepared for that scenario, I want to know if a COS to H4 can be initiated while my H1 extension application is still pending or incase I get an RFE....all this before my I94 expires in Jan. Also, IF I can do that, what will be the implications on my status?

Hope this clarifies the situation now. Any help/advice you can provide will be great.

[kabkaba]

There is no problem in filing COS to H4 before I-94 expires.
Have your employer file extension right now in premium. That way even with an RFE you will get a decision in max 1.5 months. So if that gets denied you will still have time to file COS to H4.

[scorp_min]

Problem is premium filing is not an option with my employer. Hence the question, can COS to H4 be initated while H1 extension application is still pending decision?

[shervin143]

You can do that. But be aware of the last action rule. Things could unnecessarily get complicated. In your situation, you should play safe. As mentioned in the previous reply, filing the H1B in premium and getting the result within 15 days is the best option. If the employer is not willing to pay the premium processing fee, then you can pay that. It is $1250 and it is worth instead of taking the risk.

Problem is premium filing is not an option with my employer. Hence the question, can COS to H4 be initated while H1 extension application is still pending decision?

[scorp_min]

What is the last action rule? I am not aware of it

Employer does not allow us to pay the fees......I would've gladly paid to get this done. It is a common rule with the big firm!

[shervin143]

There are lot of posts that talks about the "last action rule". Search and read them. Basically the last received I-94 will take effective and your status will change accordingly. If it is H4, you cannot work and if it is H1B, you should work and get paid.

If the H1B is filed under normal process and if you suspect that you will not get the result within the current I-94 expiry date, then file the H4 (form I-539) before the I-94 expiry date. The application for the COS from H1B to H4 should reach USCIS before the current I-94 expiry date.

What is the last action rule? I am not aware of it

Employer does not allow us to pay the fees......I would've gladly paid to get this done. It is a common rule with the big firm!

[scorp_min]

Great! The last action rule clarifies some scenarios.

You mentioned - If the H1B is filed under normal process and if you suspect that you will not get the result within the current I-94 expiry date, then file the H4 (form I-539) before the I-94 expiry date. The application for the COS from H1B to H4 should reach USCIS before the current I-94 expiry date.

So if I go ahead with this approach, I get my COS to H4 approved but H1B gets rejected later. Then will I fall back on the H4 approval inspite of the last action being rejection of my H1 extension?

[shervin143]

Last action rule has nothing to do with rejection. It applies only on multiple approvals. In your case, if the H1B extension is rejected and if H4 gets approved, you will be in H4 status. If both the petitions gets approved, then the last action rule comes into picture. Your status will change to whichever I-94 that becomes effective last. Let us say your current I-94 (H1B) expires on Jan 15th 2012 and your employer has already filed the extension. Say you get the extension approved in the month of December but the I-94 is effective only from Jan 16th 2012. In the mean while, if you have applied for the H4 and it gets approved as of January 1st (I-94 effective from Jan 1st), then your status will change to H4 on Jan 1st and you cannot work. Then on 16th the status will change to H1B again and you should start working.

Great! The last action rule clarifies some scenarios.

You mentioned - If the H1B is filed under normal process and if you suspect that you will not get the result within the current I-94 expiry date, then file the H4 (form I-539) before the I-94 expiry date. The application for the COS from H1B to H4 should reach USCIS before the current I-94 expiry date.

So if I go ahead with this approach, I get my COS to H4 approved but H1B gets rejected later. Then will I fall back on the H4 approval inspite of the last action being rejection of my H1 extension?