H1B expiring in 5 months and want to apply my wife's H1B, she is on H4 in USA as of now

I am on H1B which is expiring in June 2015 and my wife is on H4 and staying with me in USA . My employer already applying for my extension.

My wife getting sponsor to apply for her H1B(which may be by april 2015).

Tell me if there is any problem in doing that. I can think of below cases/scenarios

Case 1 : My petition approved before applying her H1B.

Case 2: My petition not approved but in Review or RFE status, before applying her H1B – can she apply H1B in this case?.
Case 3 Let’s say she applies, and by June, still i do not have my petition approved and her H1B is also not approved then, is she eligibile to stay in US ( I dont know , on her h4 basis or H1B apply basis)

After my petition is approved, i dont prefer to go to India to get it stamped.

I am pretty new understanding all these legal aspects of immigration so please help me out here and let me know any additional details if i have left out.

thanks

Regardless of your H1 extension status, your wife can apply for H1 (its called change of status - COS) in April.

COS: becasue, she is in one current status(H4) and applying for another status(H1) at the time of her H1 petition.

Also understand that regardless of her H1 approval date, she can use/she can be on H1 status only from October 2015 only. Till then, she must be in H4 or any other legal status.

Having said that

Case1 : No impact

Case2: She can apply

Case3: She can apply

You dont need a valid H1 stamping for her H1 petition.

My suggestion: Have your wife’s H4 extension filed along with your H1 extension filing.

Regardless of any of your H1 extension status, your wife can apply for her H1.

Thanks a lot for your reply. specific question over your comment “Regardless of any of your H1 extension status, your wife can apply for her H1”
On applying my wife’s H4 extension(by march 2015) along with my H1 extension,
if by the time I apply her H1(April '15), if her H4 status is in review/pending/RFE) it should be ok ?
Some forum i went through, they mention having pending statuses for H1 and H4 creates trouble/confusion ??

Till her H4 is rejected (or expired without any extension filing), she is on valid H4 status.
Creating troubles etc are very subjective. What I am answering here is what is law.

Really wanted to hear that…feeling confident now…thanks a lot

You are good, all you need is some clarity… you got it… good luck.
make an informative decision always…

I am applying H4 extension with my H1, Lets say her H1 get approved first an then H4. By Last Action Rule, her H4 status would then be in effect, does this mean she lost her H1, i might require to apply for change of status again from H4 to H1 … would that mean waiting till next year for H1 or Change of status is a simple process that i can do anytime then

Your understanding of Last Action Rule is correct.
If her H1 is fresh H1 and in CAP, I would suggest to apply for H1 even though her H4 over rides H1. The reason is being that if she gets though the lottery and petition approval for H1, she can get back to that H1 status at any time for the next 6 years. You dont need to wait till next H1 year and try your lottery luck etc.

thanks. I hope i don’t have any more technical reason to worry :slight_smile: