Legal Question in Immigration Law in California

Question regarding Last Action Rule in case of H1b and H4 becoming valid on same date

I am on L1B visa for Company A.My wife is working on EAD(L2 dependent).Company B filed for my H1B and H4 for my wife and it has been approved on 25th June. Meanwhile, my wife also has got her H1B approved from Company C and was approved on 16th May.

Questions:

1) On Oct 1st, my H1B with Company B will become valid and so will my wife's H4 filed by company B. My wife's H1B filed by Company C also becomes valid on that date. Does this mean she will be on H4 status on 1st Oct?

2) In case she is on H4 status on 1st Oct, can we do something now i.e. before 1st Oct so that her status changes to H1B on 1st Oct? Can it be expedited?

3) Can we file for cancellation of her approved H4?

4) Should she go out of country and enter on stamped H1B visa after 1st Oct?

5) Can we file Change of Status request right now so that she is on H1B on 1st Oct? Can it be done in premium?


Asked on 9/03/13, 10:24 pm

1 Answer from Attorneys
Marlene Hemmings Marlene Hemmings, Attorney at Law

First, I have to recommend that you pose these questions to the attorney who filed your wife's I-129 petition for the prospective H-1B employer.

That being said, you do not need to do anything regarding the conflict between the H-4 & H-1B status. Once she begins working in H-1B status, then her current immigration status will automatically change to H-1B. You certainly can apply for her H-1B visa at the U.S. Consulate in your home country, but that would be costly & a potential hassle. The U.S. Consulate in Mexico will not issue her H-1B visa as a Third Country National if this is the first H-1B visa that she has been issued.

Furthermore, you should not file another change of status. Not necessary, improper & it will just create a problem for you. If you are that concerned about a conflict in status, you can submit a letter to USCIS on/after October 1st, requesting that the I-539 for the H-4 visa be withdrawn, due to her change in status to H-1B. However, this seems superfluous.

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Answered on 9/04/13, 6:08 am


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