URGENT : H-1B denied. Cap-gap expired. H4 options?


My spouse was on OPT 17-month STEM extension which expired on July 17th 2012.

  • She applied for her H-1B petition on April 10th 2012.
  • Under cap-gap extension, she recieved an extended I-20 from her school valid until Sep 30th 2012.
  • She stopped working from October 1st and was waiting for the pending H-1B petition.
  • On November 17th 2012, her H-1B petition was denied.
  • We then e-filed for her COS to H-4 (I-539) on November 20th 2012 against my pending H-1B extension petition.
  • I upgraded my pending H-1B extension petition to Premium processing on November 22nd 2012 which was later approved on November 29th 2012. My wife’s I-539 is still pending.

My questions:

  1. When her H-1B petition was denied, would she be granted 60-day grace period? If yes, when would that start from? I have been recieving mixed answers. USCIS on their website states that the grace period start from the date of denial[73 FR 18944, 18949 (April 8, 2008)].

  2. Is she allowed to apply for a COS to H4 during this period? I want to make sure that we’ve filed the petition in a timely fashion.

  3. She cannot travel outside the country right now as we recently had a child on Nov 23rd 2012. What are our options to stay here legally?

Thank you.