H1B-H4 situation - Advice needed.

[aviro]

I am posting this for a visa situation which we faced. My last H1B approved date was till 12/13/2011 and an extension application was filed first week of December based on my approved I-140. My Wife was in H4 which also had a last date as 12/31/2011. She got a job in a company in end of November last year and they applied for her H1B on premium processing on 12/09/2011. (She worked in H1 from 2007 Oct till 2010 June). We anticipated that she will get approval before year-end as it was premium processing , So We did not apply for H4 extension with my H1. but Unfortunately that did not happen , she got approval on 1/3/2012.
Now my question is does that mean she is out of status for January 1 and 2nd? Can we use her new H1 application receipt as a proof that she did not stay out of status? Could this indecent affect anything in my future I-485 application? If this is really out of status case, could I apply now for her H4 extension to just for that 2 days with my H1 extension which is already in progress ?

Could you please give your valuable input.Thanks in advance for your time.

[shervin143]

Yes, her stay was illegal for those two days. But you cannot do anything now to rectify what has already happened. Since it is only for a couple of days, I don't think you need to worry much. She accumulating illegal stay will not impact your I-485.

[aviro]

Thanks for your reply. any idea if i apply for her H4 based on my pending H1 application and luckily
get approved, then there will be no out of status right?

[shervin143]

There will be an effective from and to date. They will not back date the effective from date. It will be as of the date of receipt notice. If you file the H4 now, you cannot get the effective from as Jan 1st. Filing a H4 petition to fix the illegal stay in the past will be useless and it will further complicate her current H1B approval. Her status will change to H4 and she will not be able to work as per the last action rule.

If you are really concerned I suggest you consult a good immigration attorney.

Thanks for your reply. any idea if i apply for her H4 based on my pending H1 application and luckily
get approved, then there will be no out of status right?