Legal Question in Immigration Law in Massachusetts
H1/H4 application
I was working in a university hospital till 9/30/05, which is the last day of my OPT. The hospital submitted my H1 application on 9/27/05 through premium processing. We just got a note from the hospital attorney that my current application status is �RFE� with no details yet.
My husband is also on H1 till 10/31/05. His university attorney has completed all the material for his extension two months ago without submitting it to the immigration office. The attorney initially wants to wait till my H1 application gets approved so that she does not need to file the H4 petition for me along with my husband. Now that my status becomes �RFE� and most probably cannot be resolved by 10/31, the attorney suggests me file the H4 petition along with my husband right away.
My questions:
1). Shall I file the H4 application right now in order to avoid any possible �out of status�?
2). If I file the H4 application now, most probably my H1 will get approved in two to three weeks. Can I ask the immigration service to stop processing my H4 application?
3). If in a few weeks, my H4 application gets approved no matter what I have asked. Does this overwrite my H1 approval, or no conflict at all?
Many thanks!
2 Answers from Attorneys
Re: H1/H4 application
You are not technically out of status since your H-1B petition was received by the USCIS on 09/27/2005, prior to the expiration of your OPT EAD. Further, if you are on an F-1 visa, you have a 60 day grace period following the expiration of your F-1 status. If you are on a J-1 visa, you have a 30 day grace period following the expiration of your J-1 status. It is therefore not necessary for you to apply for H-4 status. I would not take any action at this time. Simply wait for your H-1B to be approved.
Re: H1/H4 application
Dear Maam,
You do have a grace period. However, the one clarification I would make is the RFE is not a status, it means that the USCIS is requesting additional evidence that they need to make a favorable decision in your case. Now depending on how long they will take you will need to strategically approach this since you cannot have an H-4 and an H-1 at the same time. You do not want to receive an H-1 and then get an H-4 approval that overrides it. You are more than welcome to give me a call and we can discuss it further.
Sameer Kumar, Esq.
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