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I would normally ask my lawyer, but he's gone AWOL since a week ago.

I am a Canadian who came to the US as TN. My wife has TD naturally. Last week I received my H-1B approval with COS (change of status). There is no petition for my wife however. It appears my lawyer never bothered filing the H4 for my wife. I believe this means she is now Out of Status, since her TD is no longer valid.

In this case, should she fly out of the country ASAP? Or can we just relax and stay put in the US and file for her H4 (I539) to change her status?

3

They generally do not accept Change of Status applications filed when the person is already out of status, unless there is a good reason. It might be possible to file a nunc pro tunc Change of Status for your wife for the reason that the lawyer forgot to file it. But that might not work as the lawyer was probably just responsible for your Change of Status, and your wife was responsible for filing hers.

Leaving the US and returning on H4 status is probably the easiest option. If she is a Canadian citizen, she wouldn't even need to get a visa; she can just go cross the border and turn around and cross back, and present a copy of your H1b petition approval to be admitted into H4 status.

  • Thanks. Did exactly that and just got back from Ottawa. It was unnecessary, but had to be done. Looking back, it makes sense that my wife and I should have been more aware. My lawyer did exactly did the thing my company asked for. So I can't complain. – Tuna Nov 19 '19 at 13:42

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