H4 Extension and H1 together in Process

My H1B VISA is expiring on September 30 2013. So my company has applied for H1B VISA extension on July 8th 2013.

For my wife, her H4 visa is also expiring on September 30th 2013 and H4 extension is also applied on July 8th 2013.

My wife’s H1B VISA is in Initial review from April 8th 2013. Heard that If H1B Visa for my visa gets approved first and then she gets H4 later, her H1B VISA will be cancelled. If her H4 VISA is approved first and then she gets H1B Visa then no issues.

So I’m in a dilemma whether to upgrade my wife’s H1B Visa to premium or not. Normally how many months USCIS will take to process H1B VISA Extension.

Nothing is canceled. At the end of all this, her status will be H-1 or H-4 depending upon what goes into effect later (search for Last Action Rule).

Let’s say H-4 goes into effect after H-1, then her status will become H-4. She can easily move back to H-1 status by filing COS from H-4 to H-1, or entering US on stamped H-1 visa. Her H-1 is not canceled, it becomes dormant.

You can talk to your attorney on how to avoid this overriding. One option is to withdraw H-4 extension after H-1 has been approved w/ COS and it is post Oct 1 (i.e, H-1 has gone into effect).

SAURABH is Correct, see an Example below on “Last Action Rule”

Q1:  I am currently working with an H-1B visa in a company. In anticipation of being laid off by the end of May, I submitted a petition to transfer my H-1 status (not yet expired) to H-4 on February 30, 2007.  While my H-4 was still pending, I found a new job and the new employer filed an H-1B petition for me on May 1 (note: as I had an H-1B before, the new H-1B application is not subject to the H-1B cap).  Currently, both my H-4 petition and H-1B petition are pending. Will my prior petition for H-4 affect my H-1B petition?

A:  The Last Action rule will govern your status in this case.  Whether your H-4 petition will affect your H-1B petition depends on what is the last action of USCIS. Since H-4 is effective as of approval, if your H-4 is approved before your H1, when it is approved it comes into effect and your status changes from H-1B to H-4. When your H-1B gets approved later and takes effect at a later date, you will again change status from H-4 to H-1B.  In this scenario, since the taking effect of your H-1B is the last action of USCIS, it determines your final status as H-1B.  However, if your H-1B gets approved and comes into effect before the approval of your H-4, when your H-4 gets approved and comes into effect, your status will change from H-1B to H-4. In this scenario, because the last action of USCIS is H-4 approval/effective date, your final status is H-4.  If H-4 is not what you want, it is safer to request the USCIS to cancel or revoke the pending H-4 pending before it is approved.

Thanks saurabh for reply. My wife is in US from February. So if she gets approval for H1B in morning and on the same day or next day H4 extension gets approved then Can I apply for COS ? How much USCIS will charge for COS from H1B to H4

COS fees is $325.00. If both approvals happen on same day then you should ask your attorney to check with USCIS what was approved later (don’t rely on online status updates). If they happen on different days then you have more clarity on the order.

Can you please explain my scenario:
My Previous H1b i-94 expired on 10/31/2014.

My Employer applied for H1 Transfer (based on the old h1b I94) on 10/23/2014 which was approved on 11/18/2014 with 11/18/2014 effective date.

Also in Parallel we applied COS to H4 (based on the old h1b I94) on 10/28/2014. After H1 Approval we sent H4 withdrwal letter which was recieved by USCIS on 11/22/2014 and on 11/24/2014 USCIS approved the H4 COS with 11/15/2014 effective date.

We called USCIS and they said H4 withdrwal is in process.
What is my current status if it is h4 then do I get h1b status back once they withdraw my H4 petition?