Spouse converted to F1 and then employer filed H4 extension - which one prevails?

[kas2013]

Hi Experts, any opinion and expert comment on this topic will be highly appreciated.

 

We applied I539 for COS for my spouse from H4 to F1 in March and it was approved by USCIS in May. We received the approval notice and my wife joined her MBA course which she is continuing with and wishes to complete (target completion is Dec 2014).

 

Later this year my employer filed for my H1 extension and filed for my spouse's H4 extension as well. When I realized this, I asked my employer to withdraw my spouse's H4 extension as she was already on F1. The employer then confirmed in few days that it has sent an application to withdraw H4 extension application.

 

My h1 extension got approved recently and when I checked for my spouse's receipt number on USCIS website, it says that it has also been approved (though we are yet to receive the approval notice).

 

I have following questions:.

1. Which status will my spouse be in right now? Either F1 which was approved in May or H4 which is approved in Oct?

2. In case she is on H4 now, will I need to submit a fresh I-539 to convert it back to F1? Is I539 really required or a simple application (explaining this scenario and requesting status back to F1) will do?

3. Is there an option for my spouse to travel to India and get F1 stamped within a month or two (without requesting CoS from H4 to F1)?

4. If my employer really withdrew the application, should we wait and see if USCIS works on it now after H4 extension was approved?

 

Thanks in advance.

[Attorney_11]

Generally, an application is considered withdrawn upon dispatch of the request for withdrawal. However, because of the potential for some confusion, it may be advisable to speak with a  competent qualified immigration attorney to discuss strategy and documentary requirements for future scenarios.

[shekar11#]

1. Which status will my spouse be in right now? Either F1 which was approved in May or H4 which is approved in Oct?

 

A) H4 prevails because it is the latest one.

 

2. In case she is on H4 now, will I need to submit a fresh I-539 to convert it back to F1? Is I539 really required or a simple application (explaining this scenario and requesting status back to F1) will do?

 

A) You need to submit a new I 539.

 

3. Is there an option for my spouse to travel to India and get F1 stamped within a month or two (without requesting CoS from H4 to F1)?

 

A) Yes that would be quick and easy than waiting 2 or 3 months for COS to be approved..

 

4. If my employer really withdrew the application, should we wait and see if USCIS works on it now after H4 extension was approved?

 

A) Yes. Wait till you get your approval documents and then you can follow up about what happened with the withdrawal of application.

[kas2013]

thanks for you replies, they are really helpful.

 

I have one additional question. Is it possible to withdraw or cancel the H4 approval now by requesting USCIS? In case yes, if canceling/withdrawing H4 approval will automatically get my spouse on the erstwhile F1 status?

 

Thanks.

[shekar11#]

Is it possible to withdraw or cancel the H4 approval now by requesting USCIS? In case yes, if canceling/withdrawing H4 approval will automatically get my spouse on the erstwhile F1 status?

 

No. You cannot do that once it is approved. Even if you cancel or withdraw your approved H-4 application it will definitely not get back your spouse F-1 status.