H4 to H1B transfer when I-94 for H4 is expired and extension for H4 has not come yet


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I am currently on H1B visa with one MNC and an extension petition was filed for my H1B. My current H1B is valid till Sep 1, 2013. My wife is currently on H4 and her visa is also valid till Sep 1, 2013.

My wife was previously in US on H1B and currently has approximately 2 years left on that H1B. She is currently trying to rejoin the workforce and has also found an employer willing to transfer her H1B. However, we are currently in a situation where her current H4 is valid only thru Sep 1, 2013 and the extension has not yet come. Her employer is saying that after Sep 1, they will not have a valid I-94 to show the USCIS and thus they are suggesting three options to my wife:

1. Wait for the H-4 extension to be approved by USCIS (which may take a few months) and then file for H1B


2. File a new H1B for her.




3. File for premium processing for my H1B extension so that my wife's H-4 approval can be expedited.

Do we have to wait for H4 extension to be approved before her new employer can file to renew her old H1B (just because we are currently in that phase when on Sep 1, 2013 the current valid H4 will expire)? Can they not show the receipt for extension from USCIS in lieu of a valid I-94 which would prove that her H4 file is under consideration at USCIS along with my H1B extension?


Also, it is advisable to apply for premium processing after the extension has already been filed?


Your advice is really appreciated.

Thanks in advance.


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The easiest and perhaps the least complicated option is to upgrade your H1B to premium processing. Assuming your wife's H4 extension was concurrently filed with your H1B extension; USCIS will most likely concurrently approve the H4 with your H1B. After the approval is received, have her new employer file the change of status petition. To discuss this in more detail regarding your options and limitations it is advisable to speak directly with a qualified U.S. immigration attorney.

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