Can an H-1B be filed for me while my H-4 extension application is pending?

QUESTION: I have H-4 status with an I-94 that expired last month. My husband’s employer filed for an extension of his H-1B and my H-4 two months ago. I now have an offer from an employer that wants to apply for an H-1B for me. But I don’t know if they can file the H-1B application for me or if they have to wait until my H-4 extension is approved. If my H-4 extension is not approved by the time they need to file the H-1B for me, will my H-1B be denied?

THE IMMIGRATION ANSWER MAN – ARI SAUER:  Yes, the application for the H-1B can be filed, but whether it can be approved as a change of status will depend on whether or not the pending H-4 extension application is approved.

As a general rule a foreign national must be in valid nonimmigrant status (such as an H-4) in order to apply for an extension of their current status (“EOS”) or a change of status (“COS”) to another nonimmigrant status (such as an H-1B). The expiration date of someone’s nonimmigrant status is determined by the expiration date of their Form I-94 Arrival/Departure Record. So, in your case, your H-4 nonimmigrant status ended last month when your I-94 expired. However, when a non-frivolous EOS or COS application is timely filed (meaning filed before the I-94 expires), then when the I-94 expires the foreign national will then be in a “Period of Authorized Stay”. This means that they are authorized to remain in the US while their application for EOS or COS is pending with USCIS, but this is not the same as being in “status”.

Now when a second application for EOS or COS is filed after the I-94 has expired, but while the foreign national is in a Period of Authorized Stay, the second application for EOS or COS will be considered to be “Bridging” on the first application for EOS or COS. If the H-1B petition were to be filed for you before your H-4 extension is approved, the H-1B petition would be bridging on the H-4 application. If the H-4 application is denied by USCIS for any reason, then the request for the COS to H-1B would be denied as well. In such a situation, USCIS could still approve the H-1B petition, but they would not issue you a new I-94 with the approval notice. You would instead need to leave the US, get an H-1B visa issued in your passport at the US consular post abroad, and then return to the US using the H-1B visa. But keep in mind that your Period of Authorized Stay would end when USCIS denies the H-4 application. The fact that your H-1B petition is still pending with USCIS does not keep you in a Period of Authorized Stay. In such situation the “bridge” has collapsed. So if you find yourself in such a situation, you should contact your experienced immigration lawyer for advice as soon as you receive the Denial from USCIS of the H-4 EOS.

But if the application for H-4 EOS is approved, you will then retroactively be considered to have been in valid H-4 nonimmigrant status from the time your prior H-4 I-94 expired through the expiration date on the new I-94 that is provided to you with the Approval Notice for your H-4 EOS application. In that case, you will considered to have been in “status” when the petition for COS to H-1B was filed, and USCIS will have the ability to approve the COS to H-1B and issue you an I-94 that covers the new H-1B nonimmigrant status.

Please note that this is a brief discussion of a fairly complicated legal issue. So I highly recommend that you consult with me or another experience immigration lawyer as soon as possible, as the little details often make or break someone’s immigration case and it is impossible for me to cover everything in an article like this.

Please see my contact information below if you would like to schedule a consultation appointment with me to discuss your immigration issue.

Published 2/8/18 by attorney Ari Sauer.

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Submit questions to Ari Sauer – The Immigration Answer Man by emailing your question to immigrationanswerman@gmail.com. Questions submitted by email may be posted on this site, without personal information, unless the email specifically requests that we not use the question for this site. Due to the volume of questions received, not all questions submitted will be answered. Only general questions can be answered on this blog. For answers to specific questions about your situation, please schedule a consultation appointment with attorney Ari Sauer. Sending in a question by email or any other means does not create an attorney-client relationship. * This is an advertisement. Ari Sauer is an attorney with the Siskind Susser law firm. On this blog we answer questions as a service to our readers, but we cannot assume any liability related to reliance on anything herein, and responses to questions are not intended to establish an attorney-client relationship. Immigration laws and regulations are constantly changing and the rules stated may not be current or apply to your particular situation. Readers are cautioned to schedule a consultation with an immigration lawyer rather than relying on anything stated in this blog. This blog is not intended to substitute for a consultation with a qualified immigration law attorney. Ari Sauer is licensed to practice law through the states of Tennessee, New York and New Jersey but is eligible to assist clients from throughout the US. Certification as an Immigration Specialist is not currently available in Tennessee, New York or New Jersey. Siskind Susser limits its practice strictly to immigration law, a Federal practice area, and we do not claim expertise in the laws of states other than where our attorneys are licensed. the opinions expressed here are those of Ari Sauer and do not necessarily reflect the opinions of Siskind Susser.