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Can my wife continue working her EAD till Oct ? Would we need to file another COS from H4 to H1B now to use the approved H1B ?

Wilmington, DE |

Scenario:
1. I came to the US for Company A in 2011 on L1B visa with my wife and son on L2 visa.
2. Wife got an EAD based on her L2 status. Validity from 24 Feb 2012 to 6 Jan 2014. Currently working on the same.
3. Wife got her H1B applied this year on 1st of April, 2013 and it got approved on 23rd of May 2013. H1B starting from Oct 1st, 2013.
4. Company B applied for my COS from L1 to H1B(non-cap using my old H1B cap number) on 3rd of April, 2013 along with my dependent’s H4. It got approved on 9th of July, 2013.

My wife's employer sent an email that his attorney confirmed that she can work on EAD till Oct and from Oct 1st, she can be on H1B and that we don't need to do anything. But it does not sound right because I am no more on L1B then how can my wife use an EAD issued on a L2 till Oct ? Also my H1B(non-CAP immediate COS) and her H4(COS immediate) was approved after my wife's H1B(CAP COS starting 1st of Oct) approval. Hence wouldn't the Last Action Rule apply due to which she will have to get an COS(H4 to H1B non-CAP) applied again?

Attorney Answers 3

Posted

Depends on whether USCIS changed her status effective October 1.

Your employer needs to retain an experienced immigration lawyer to review all the facts, advise them, and handle the case. Your employer can find one through http://www.ailalawyer.com.

J Charles Ferrari Eng & Nishimura 213.622.2255 The statement above is general in nature and does not constitute legal advice, as not all the facts are known. You should retain an attorney to review all the facts specific to your case in order to receive advise specific to your case. The statement above does not create an attorney/client relationship. Answers on Avvo can only be general ones, as specific answers would require knowledge of all the facts. As such, they may or may not apply to the question.

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Posted

Thanks Ferrari. My wife's employer sent an email that his attorney confirmed that she can work on EAD till Oct and from Oct 1st, she can be on H1B and that we don't need to do anything. But it does not sound right because I am no more on L1B then how can my wife use an EAD issued on a L2 till Oct ? Also my H1B(non-CAP immediate COS) and her H4(COS immediate) was approved after my wife's H1B(CAP COS starting 1st of Oct) approval. Hence wouldn't the Last Action Rule apply due to which she will have to get an COS(H4 to H1B non-CAP) applied again?

Posted

I agree with my colleague. If your wife's status has been changed to H1-b then she is no longer a L-2 and has to wait until October. It is best to ask Company B's immigration attorney to assist you.

Alexus P. Sham alexuspshamesq@gmail.com (917) 498-9009. The above information is only general in nature and does not constitute legal advice. It does not create an attorney-client relationship.

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Posted

I agree with my colleagues.

Law Offices of J Thomas Smith J.D., Ph.D 11500 Northwest Freeway, Suite 280 Houston, TX 77092 713-LAWYER-2 www.MyImmigrationLawyer.info NOTE: Responses are for the education of the community at large and is not intended to be "legal advice." No attorney-client relationship is established by responses or comments.

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