Legal Question in Immigration Law in California

Normally, I would need to see all of the documents that you have mentioned above, and would want to know from which country you come. You should also double check all of the information with the "employer" and/ or "agency" that filed the paperwork. That being said, I can attempt to answer your questions.

1. You stated that the "agency" (not sure what this word 'agency' means here) filed a EOS/COS 5/12/09 (prior to your I-94 expiration), with an I-129 petition. Assuming that the agency also filed the rest of the required documents (e.g. I-129 Supplement, certified CA ETA 9035, letter fully describing the professional specialty occupation and how you meet the minimum requirements for the position--a bachelors, etc., then it sounds like the agency filed the correct information. When the H-1B is approved, it should be an approval with a new I-94 at the bottom of it.

2. Assuming that you have maintained your status since your entry to the U.S. as an H-4 visa holder (e.g., no unlawful employment, still married to the principal beneficiary of the H-1B, the H-1B holder still is in lawful H-1B status, and no overstays), then your stay is valid since the request for a COS was submitted prior to your I-94 expiration.

3. The immigration laws permit you to be in the U.S. since the I-129 petition was filed prior to your I-94 expiration.

4. If your H-1B is denied, then you would be required to depart the U.S. upon the notification of the denial.

5. Depending upon the specific situation and country, if your spouse is still in lawful H-1B status, then you should be able to use your H-4 visa in your old passport, or apply for a new one in your new passport--but, I would need to see the passports to make the determination. FYI, f your H-1B had not been filed, and you had wanted to simply get an extension of your H-4 status, you could have done that in the U.S. by simply filing the I-5 39 form to extend your stay, so long as it had been filed prior to the expiration of the I-94. Now, since that wasn't done, and in the event that your H-1B petition is not approved, you would be required to leave the U.S. to obtain a new H-4 visa, and re-enter in H-4 status (of course, still assuming that your spouse has maintained lawful H-1B status, is working for the H-1B employer, you are still married, etc.)

For further information, I would be happy to assist you offline at [email protected] or call 415-387-1364.

NOTE: The above response is being provided for legal information only and should not be construed as legal advice, nor to create an attorney-client relationship. If follow-up advice is needed, please contact the below-mentioned.