Stamford, TX Immigration Law Firms & Lawyers

If your wife's H-4 visa status is expired and she is still waiting for the H-1B which was filed on her behalf, she would not be considered out of status as long as the H-4 extended until September 30 if your wife is applying for a cap H-1B. Your wife can file for an H-4 extension even after the date is expired, but it will be up to U.S.C.I.S. as to whether it will approve a late extension. As your I-140 petition is already approved, you can think of your wife filing an H-4 EAD, but should be aware that U.S.C.I.S. is reportedly looking to rescind the rule that allows H-4 employment. If you and your wife do decide to go that route, your wife can file for extension and EAD at the same time. If your wife obtains the H-4 EAD before her H-1B is approved and the H-1B is later approved, the H-1B would be valid and supersede the H-4. Due to the limitations of the Lawyers.com Forums, Alan Lee, Esq.'s (the "Firm") participation in responding to questions posted herein does not constitute legal advice, nor legal representation of the person or entity posting a question. No Attorney/Client relationship is or shall be construed to be created hereby. The information provided herein by the Firm is general, and requires that the poster obtain specific legal advice from an attorney. The poster shall not rely upon the information provided herein as legal advice nor as the basis for making any decisions of legal consequence.  

The I-130 visa petition does not have an income requirement, so there is no issue. For the parents, if they also do adjustment of status or consular processing, there will be an income requirement and if your income is not sufficient, you will need to get a financial co-sponsor.

You can still petition for your wife on Form I-130, but she will need to file a waiver on Form I-601 for misrepresentation. If your wife tried to claim that she was a US citizen, then she is banned from the US permanently.