Husband's H1 B and Wifes I 94 Expired- What they Should do

Here is the situation at hand:

Husband's Company filed for his extension on 09/06/2011 which got approved on 11/24/2011. The company did not file I 539 for the Wife, which is why she is currently out of status.

The couple plans to file for wife's I 539 in a couple of days. In the meantime, the husband is planning to change his job and his new employer is planning to file his petition next week which should get approved in couple of weeks of filing. I 539 approval takes 60-75 days.

So the wife wants to know:

• Will there be a problem with her I 539 approval since they will be filing her I 539 with his old company's I 797?
• Should the husband's new employer file for wife's H4 along with his H1?

The company explained they can't as the wife is out of status and will apply for H4 only after I 539 has been approved.

Here is the guidance  provided by experienced immigration lawyers in Denver Co

The best way to handle this is to leave the U.S., and reenter on the existing visa. You will be provided a new I-94 on reentry that correlates to your husband's. The other option is to file the 539 at the same time your husband files the new H-1B and rely on the regulation that allows USCIS to forgive you for technical violations. The risk, of course, is that if the case is denied, you will be out of status. Additionally, if you have accrued more than 180 days out of status after 09/28/11, you could be barred from reentry for three years. Please consult with an experienced immigration attorney before proceeding.

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