F2 to H4 COS right after immigration.

HI I am on my OPT and my company is filing for a H1b for me in April 2013 when the window opens. To give a background I work for a medium sized startup, my OPT ends October 2013.

My wife recently got an F2 and plans to ocme here at the end of March(before I file my H1b). But her F2 VISA has an expiration date of June 2013. Which in all probability could mean her I-94 will also get the same date. My question is

  1. Should I file jointly for her H4 with my H1 or wait till my application and COS is approved, given she just entered? Because I can expedite them both if I file together right?

  2. what is the general trend of these cases? Given we never have had any VISA rejected before and we I have always been in status and working directly for a company(not consulting), with 6 digit funds to support her and me.

  3. I believe that if we file together and the H4 is rejected then will her F2 be valid?

  4. If filed separately then her approval for COS may pass her i-94 expiration date. Should she leave the US by then?

-Best

  1. Your H-1 will be approved for a start date of Oct 1. So she needs to get her H-4 filed in a way that it also gets approved by the time you start working on H-1. Most of the time it is applied along w/ the H-1 so that they run in parallel and get approved together.

  2. It varies from case to case. Your employer should be able to show that they have enough funds or resources to pay you the salary. They are not required to show funds for your wife - that is your responsibility from your pay check.

  3. She will remain on F-2 until it’s expiration date or until you move to H-1 (whichever is earlier). In this case it looks like she will be covered till June 2013 when F-2 expires.

  4. She can stay on the basis of pending H-4 COS. She can stay for at most 240 days beyond I-94 expiration date or H-4 denial date (whichever is earlier).

I think she will get I-94 on the basis of your OPT card so it will be till Oct 2013. Make sure she has a copy of your OPT card along w/ your employment details, so that the officer can give her I-94 valid until your OPT.

Is the H-1 being filed by an attorney? If yes, then they will also be able to guide you on her H-4 COS.

Hi Saurabh,
Thanks for your replies, The replies from my attorneys have come in and I want to share them with people here so that they may benefit. We have had a long case and the fact she has an F2 is itself something people dont get easily.

There are two things I have learnt

  1. When case gets complicated get a lawyer
  2. Always be on the safe side and ask before you do anything.

Here is my case in some detail for people to see and perhaps take away something from it.

====CASE REITERATION====
My wife is coming on a F2 dependent VISA in March and the concern is, that her I-94 expiration date she gets is going to be in June. This is because her F2 VISA expiration date for some reason is in June (even though my OPT is till October) and the CBP officer could use his discretion, and may put June on her I-94. I plan to file for an H1 and H4 jointly for her in April under expedited proceedings (Otherwise it takes 2-6 months).
We have never had visa rejections before this and my F1 and her F2 are our first VISA’s ever to the US.

=======Here is what my lawyer suggested=========

If an H-4 change of status application is filed on her behalf prior to her I-94 expiration date, then she will be allowed to remain in the US until the H-4 is adjudicated by USCIS. Since you plan to apply for your H-1B on April 1, 2013 under expedited processing, this should be before the expiration date of her I-94 (June 2013). There are three responses the USCIS can give to her H-4 application.

  1. They can approve the change of status from F-2 to H-4 and extend her stay. No further action is needed and she will automatically change to H-4 on October 1, 2013.
  2. They can approve the change of status from F-2 to H-4 and deny the extension of stay. In this case, your wife will have to exit the US and obtain her H-4 visa to reenter the US using her approval notice.
  3. They can deny the change of status from F-2 to H-4. In this case, your wife will have to leave the US and use your H-1B approval notice to apply for a H-4 visa outside the US.
    ======================================

Now every case is different. Like you may have had rejections before. Your company may not file an expedited H1-H4 in which case your wife may have to hastily leave when the USCIS comes back with a negative decision or Perhaps a pending Green card case or whatever.
That is why lawyers were the best use of money and time and they cleared all my doubts. Remember a lawyer is only for advice that is not available unambiguously on the internet in even slightly complex cases.

-Best