withdrawing H4 application after H4 visa expiry


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!!!

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 If H-1 gets approved first w/ COS, H-4 extension can be withdrawn (but not before Oct 1).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.