Immigration Issues/F2 to H4

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Question
Hi Ajay,
Good Evening.

Situation:
My OPT work authorization is valid upto 11/18/2009 and F1 status expires by 01/08/2010 (with 2 months grace period after OPT work authorization). My spouse is on F2 visa.  
I worked for 3 employers during my OPT period.  My second employer applied for H1 in the month of June-2009 and it is denied on 07/29/2009. Later, my third employer(present employer) applied for H1 on 10/19/2009 and it is approved on 11/11/2009. I provided all the documents of mine and my spouse to Employer, but some how they did not submitted my spouse documents for F2 to H4.

In this scenario, I need your help in answering the following questions:
1) As my employer did not applied for F2 to H4 for my spouse, what about her status? Is she is "out of status"? What I have to do? Please advice me/

2) Actually, who have to apply for F2 to H4 of my spouse? Is it my employer  or Me?

3) As my first H1 is denied on 07/29/2009, am I "Out of Status" from that date?

Answer
Hi,

Since you have presumably been granted "change of status" (COS) to H1B on 11/11/09, your spouse is indeed violating status as of that date since her COS application to H4 was not filed prior to 11/11/09.

My recommendation is for your spouse to depart the U.S. soon and obtain H4 visa stamp from a U.S. Consulate in her home country. She does not require your employer's permission to apply for H4 status.

If she remains in the U.S. and applies for COS to H4 on Form I-539 http://www.uscis.gov/files/form/i-539.pdf, her application may be denied as she is currently not maintaining her F2 status.

You do not have to be concerned about your first H1B denial, as you continued to remain in F1 status when the H1B petition was denied on 07/29/09.

Regards,
Ajay K. Arora, Esq.
www.h1b1.com

Immigration Issues

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Ajay K. Arora

Expertise

I can answer your questions on employment and family-based U.S. Immigration Law. Expertise in various immigration categories includes the following: H-1B, L-1, O-1, PERM (labor certification), EB-1 to EB-3 I-140 employment-based immigrant petitions, family or fiance(e) or spousal sponsorship, visa extension or change of status, adjustment of status, naturalization (citizenship), etc.

Experience

Ajay K. Arora attended Pennsylvania State University and the University of Wales at Swansea (United Kingdom), and earned his law degree at Temple University School of Law, Philadelphia, in 1993. Mr. Arora has practiced Immigration Law since graduation and is a member of the American Immigration Lawyers Association since 1995.

Organizations
American Immigration Lawyers Association (AILA) full member since 1995.

Education/Credentials
Ajay K. Arora attended Pennsylvania State University and the University of Wales at Swansea (United Kingdom), and earned his law degree at Temple University School of Law, Philadelphia, in 1993. Mr. Arora has practiced Immigration Law since graduation and is a member of the American Immigration Lawyers Association since 1995.

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