Can i apply for H1b and also H4 extension at same time??

Hi Saurabh,

There is an Non-profit org ready to apply for an H1b (cap exempt) for me. My H4 is getting expired in Jan 2014. So my husband’s employer is applying for our visa extensions (husband’s H1b and my H4). I have the below questions:

1)What if H1 is processed first followed by H4 extension and both get approved?

  1. What if my H4 extension is approved first and then my H1b is approved?

  2. Should I not apply for an H4 extension at all?? - considering the fact that my H1b will be applied. But I guess this will be risky in case if the H1b is not approved.

  3. Please let me know the safest way out.

The Oct1 deadline doesnt apply in my case as its a cap-exempt H1b.

Thanks a lot!

There is something called “Last Action Rule”, which states that the petition which goes into effect later, determines your eventual status.

So if H-1 has start date of Nov, and then H-4 gets approved w/ start date of Jan 14, then your status will become H-4 from Jan 14. If H-1 gets approved after H-4 extension goes into effect, then your status will become H-1 from H-1 COS approval date.

Few ways to avoid this:

  • file H-1 COS w/ PP. Once you know the result you will know whether to file for H-4 extension or not

  • file H-1 COS w/ RP. Wait to see if it gets approved on its own. Typical processing time is 2-4 months. If it gets approved, then don’t file H-4 extension. If it is denied or still pending, then you can decide to upgrade to PP or file H-4 extension.

Thanks a lot Saurabh! Your replies are of great help. I love this blog…