withdrawing H4 application after H4 visa expiry

USA H1B Visa
1

Hi,

My H1B is applied on 8th April,2013 and my application is still pending. 

My H4 is expiring on 30th July 2013. Due to budget issues I cannot afford to travel to my home country during 30th July and 1st October (I'm hoping that by 1st October my H1B will be approved and comes with new I-94). 

What are my options ? - I can get H4 extension done but if H4 is approved after H1...does "Last Action rule" applies ?

I consulted my employer ..who says to apply for H4 extension and If H1 approved first then I can simply withdraw my H4 extension application. 

But what will be my status between H4 expiry and H1 approval. 

 

Employer also says that H4 withdrawl is legal because I have applied for H4 extension during that period and also fresh H1b comes with new I-94 for those already in US and no need to apply for I485 for change of status. 

Please suggest!!!
2

Your employer is correct.

Have H-4 extension filed before its expiration date. Once this has been done, you can continue to stay in US on the basis of pending extension. If H-4 extension gets denied, then you need to leave US ASAP.

If H-4 extension gets approved prior to Oct 1, followed by H-1 then you will be on H-1 from Oct 1. If H-1 gets approved first w/ COS, H-4 extension can be withdrawn (but not before Oct 1).

Also, there is a possibility that USCIS will issue RFE for proof of H-4 extension as you don’t have any I-94 covering the period b/w July and Oct.