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Immigration Issues/H1 application while I-539 cos H4 pending

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Question
I was on H-1 and got laid off on Friday. I filed for COS to H4 online on the same day and got the electronic receipt the same day. As I had filed I-539 after work hours, the receipt shows that USCIS received my application on following monday. I have been working in US with good status for last 5 years.

Now I have some questions. Any help is greatly appreciated:

1) I recently got two Job offers from different consulting firms. When I told them that my H4 status is still pending, their attorneys told me conflicting things.
- One employer's attorney said that I have to wait till my H4 is approved and only then they could apply for my H1. At this time I have not status and they cannot file my H1.
- The other employer's attorney said that I could apply for H1 while my H4 is still pending by giving pending petition reference in the new H1 application. This will let USCIS adjudicate both the pending status together and there will be no problem for my H1.

Which one of them is correct ?   What are the risks involved if I go with the advice of second attorney? Is there a possibility that filing H1 increases the chances the both my H4 and H1 applications are rejected and I could be OOS ?

2) Second question is that the second employer wants me to start immediately after I get H1 receipt. Am I eligible to work on a receipt with my situation or do I need to wait for the complete approval ? What if I get an RFE ? As this is a consulting firm, they have work order from end client for only 3 months and it will be renewed after every 3 months. Will this 3 month work order will create  any problems ?

3) What is my current status ? Will the current time while H4 is pending will be counted against H1 or H4 ? As I have only a little over year left in my H1, it is important for me to know how much valid time I have left for H1. This processing time could go in months if I get an RFE.


Answer
Hi,

You are legally in the U.S. However, as you are no longer currently maintaining H1B status, you cannot start work for the new employer until the H1B petition has been approved. Filing the H1B now will not result in automatic denial of pending H4 application, and the only risk is that H4 status is granted after H1B approval, thereby rendering the H1B status invalid as the latest action is H4 approval.

You can receive an aggregate of six years in H1B status, and an additional aggregate of another six years in H4 status.

The H1B may be approved only for 3 months if the evidence provided with the H1B petition indicated available work for only 3 months.

Please call our law firm directly at 212-268-3580 during business hours or email info@h1b1.com to arrange for legal consultation if required.

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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