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Immigration Issues/H4 Extension Pending Filing for H1B

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QUESTION: Hello, I have a question regarding I-539 (extension of stay)withdrawal. I filed I-539 for H4 extension separately (after my spouse's H1 extension filing) on Aug 15, 2011. My I-94 expired on Aug 27,2011, but as per the 240 days rule I am maintaining my legal status. Now I have a job offer and they are ready to file for my H1B (non-profit organization). Please advice on withdrawal of I-539 and how if at all, it may affect my H1B application.
Specifically will it matter that my I-94 is expired even-though I am maintaining legal status by filing I-539 before the expiry. Also if I get my H1B approved and request for withdrawal of H4 application will my current stay in US will be considered illegal??

Thanks,
SSS

ANSWER: Hi,

If you withdraw the I-539, you will be violating status as your existing I-94 has expired.

H1B petition should be filed now and copy of I-539 receipt should be attached and change of status from H4 to H1B should be requested on H1B petition. The H1B petition will be approved by the USCIS granting change of status if the I-539 is approved first granting change of status to H4.



---------- FOLLOW-UP ----------

QUESTION: Thank you for your answer.
I have another question based on your answer.
It has been only one month since my spouse's H1 extension has been filed and its still pending, naturally my H4 approval will come only after his approval. It will take another 2-3 months.Do you advice filing for this new H1b under premium processing? My concern is if H1 gets approved before H4 then by "last action rule" H4 status will become my current status. Is there any way I can reduce this transaction period or I will have to go by "regular processing" and not "premium".

Thanks again this is very helpful.

Answer
Hi,

If your H1B is filed through premium processing, the USCIS will approve it, but may grant only "consular processing" rather than change of status since the I-539 would probably still be pending. Without grant of change of status, you will be required to depart the U.S., obtain H1B visa stamp at a U.S. Consulate, and then enter the U.S.

Alternatively, if you get lucky, the USCIS will approve the H1B petition filed through premium processing granting change of status, but then when I-539 is approved later, the last action rule will supersede the H1B status, and you will be back in H4 status.

There is no obvious solution to this dilemma.

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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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