H-4 as backup while I-485 pending?

[yhchan]

Hello, I have some questions that I would like to get some opinions from all of you.

 

I am current on H1-B which expires on 8/28/15 and my husband is on F-1 OPT that expires 5/31/15. We are currently in the process of getting a green card through my work (EB2, ROW) so our priority date is current. We are expecting to file I-140 and I-485 concurrently in Feb/Mar or at the latest April.

 

Now we are wondering: Should we apply for an H-4 for my husband in case some thing goes wrong with my green card process? I looked up the processing times, and Texas service center will be handling it if we submit an I-539 to change him from F-1 to H-4 because we are not filing together with an I-129 (worker petition). Texas is only processing cases submitted in August 2014. By the time he changes status to H-4, his OPT would have almost definitely expired, and there may only be a few weeks left on my H1-B. If we are lucky, we may have already gotten our AP and EAD from I-485.

 

Worst case scenario that I can think of: our I-485's are denied. He has to leave the country and wait for me to apply for H1-B renewal, and he gets a H-4 visa stamp at a consulate in his home country.

 

Do you think if it is even worth the hassle and money to change to H-4 now?

 

[pontevecchio]

Once the concurrent applications are on file you are both legal to stay. What is your lawyer's take?

[tusharvk]

H4 as back up can be done if you are concerned about 485 denial; I am curious why though.