H4-H1..When primary H1 extension is pending

[kattu786]

I came to US on H4.However , I had H1 in the past and hence I am cap-exempt.One employer is ready to file my H1 petition but problem is that my spouse H1 extension as well as my H4 extension both are pending.

 

I discussed with one attorney and he says that my H4-H1 cos can only be filled if either my spouse H1 or my H4 gets approved.Currently I don't have a status and hence COS can't be filled.My query is 

 

1) whether my spouse's H1 approval notice will serve the purpose?

 

2) Is it necessary for my H4 extn to get approved ?

 

3) Can it be filled now when both extn are pending?

[pontevecchio]

Consider getting the visa after the petition approval.

[jairichi]

I came to US on H4.However , I had H1 in the past and hence I am cap-exempt.One employer is ready to file my H1 petition but problem is that my spouse H1 extension as well as my H4 extension both are pending.

 

I discussed with one attorney and he says that my H4-H1 cos can only be filled if either my spouse H1 or my H4 gets approved.Currently I don't have a status and hence COS can't be filled.My query is 

 

1) whether my spouse's H1 approval notice will serve the purpose?

 

2) Is it necessary for my H4 extn to get approved ?

 

3) Can it be filled now when both extn are pending?

1. Nope. His extension approval is needed.

2. Yes. It will avoid confusion if H1B petition is filed now. 

3. It might cause confusion like if your H4 extension gets approved after your H1B petition approval. Then according to last action rule you will be on H4 again. And, then either your employer has to again apply for COS to H1B or you need to exit and enter with a valid H1B visa.

[kattu786]

Consider getting the visa after the petition approval.

Thanks for the replies.

 

If I file COS to H1 now as premium processing and if I get the approval , I can revoke the H4 petition later.Do you think it would be a safer option ? 

I understand getting the H4 approval is the best option but its taking a lot of time these days , so I was thinking of above option.Do you see anything going wrong if I go with the above option.