Filing for I-140 while out of status( with pending H4)


rnandan

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Hi all, 

My PERM was certified yesterday and my employer is preparing my I-140 PETITION. 

I would really appreciate if someone could just advise me on following questions. Any advise on the following question will greatly help us. 

My H1B expired on Sep 30th 2015 but 1 month before that on August 31st I applied for change of status to H4 VISA based upon my wife's approved H1B visa. Currently my H4 VISA is pending. I still have 6 weeks of recapture time left on my H1B which I have not used yet. 

My question is: 

1. Can I apply for I-140 while my H4 is pending? 

2. If Yes, can I apply for change of status to H1B with approve I-140 while my H4 is pending?

I will really appreciate your advise on these 2 questions. 

Thanks

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The I-140 Petition can be filed and approved by USCIS when the beneficiary has a pending H4 application. Even though the I-140 form asks about the person's status, it is merely necessary to explain that there is a pending change of status and once the I-140 is approved, an H1B petition can be filed to change back to H1B. However, to get from H4 to H1B with the approved I140, the H4 will need to be approved. Sometimes USCIS will approve the H4 during the pendency of the H1B but sometimes they will just approve the H1B for consular processing. 

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