Help Required - Urgent

[ramyaraj]

Hi,
I am currently on H4 Visa and it is valid till 2010 with a valid I94. Also, currently I am in US.

I applied for H1 Visa in Apr 2008 and i have got the H1 Approval notice alongwith the new I94 valid till 2011. I haven't joined my employer. Due to personal problems, i am planning to join my employer by mid of next year.
My H1 Employer says that after a H1 approval and a new I94, i am out of status on H4. If i dont want to join the company immediately on H1 Visa, then I need to reactivate my H4 using the I-539 form.

My doubts are as follows.
1) Does my H4 Visa status goes Out of Status after a valid H1 approval and new I94?
2) If so, do i need to apply I539 form to reactivate my H4?

Pls help me with this problem.

Thanks.

[txh1b]

1. Yes. You are on H1b and need to be working and getting paid.
2. COS back to H4 will not be approved without your pay stub from your current status i.e H1b.

[ramyaraj]

I have not joined the company so I wont be able to get the Paystubs what are my other options for going back to H4 status?

I have got two opinions from two different lawyers one agrees to what you said but other person very confidently states that unless I do something like join the company and/or receive paystubs the H1 status is not valid and I can continue in H4 without requesting for a change of status.

If I do have to apply for a changeof status with out paystubs how can we explain the situation to USCIS as it is a very genuine situation

[txh1b]

Ignore the other attorney. USCIS knows about benching. Your employer is supposed to pay you and you work. That is the law. If not, leave the country and come back on a H4 immediately.
COS will not work as you are out of status.

[ramyaraj]

Employer says he cannot give a paystub because I have not joined the company.

The reason for not joining the company is due to medical condition for which I can get doctors medical certificates.

There is a deadlock now.
If I have to convert back to H4, i need paystub. But for paystub I will have to start working. How do we resolve this?

[sadhvi]

Hi Ramyaraj,

If you have a valid H4 stamping on your passport, all it takes is to get out of this dead lock is, travel out of US to any country( say canada or mexico or India) and return back to the US in your H4 status. This would be your safe side bid.

When you travel out, remember to turn in your I-94 that was attached to you H1 approval notice and when you return get a new I-94 with H4 status on it.

I did something very similar.

Good luck!!

[ramyaraj]

Hi,

I forgot to mention about one important information. My H4 I94 was getting expired in Aug 2008. So i had applied for Extension of the I94 using I539 form in August 2008.

So does that mean, my current status automatically becomes H4?
Notice date in my H1 approval form is June 2008.
Notice date in my H4 approval notice is Aug 2008.

Kindly somebody help me out.

Thanks.

[txh1b]

You need to provide all relevant information for proper feedback in one go. It is difficult to refer to the history of a thread and then re-think the situation again.

If your H4 extension was applied before your H1b COS kicked in (Oct 1st) and before the H4 I-94 expired, you need not do anything. You can remain on H4 as you fall under authorized presence period. Did the H4 extension get approved yet? If not, you are good.

If the H4 extension was applied after H1b kicked in, this does not apply as your status already changed to H1b. Look up last action rule.

You pick what is applicable to you from the above scenarios. Pay to a professional for proper evaluation of your case.

[ramyaraj]

Hi,

Thanks for the reply. I am in US from 2007 in H4 visa. I applied for H1 in Apr 2008. I got my H1 appoved and in the H1 approval notice,
Receipt date is May 2008,
Notice date is June 2008 and
I94 start date is Oct 2008
I94 End date is Sep 2011

In the meantime, my H4 and I94 was about to expire in Aug 2008. So i applied for H4 I94 extension in Aug 2008 and got the H4 approval for extension and in H4 approval notice,
Receipt date is Aug 2008,
Notice date is Aug 2008 and
I94 start date is Aug 2008
I94 End date is Aug 2011


My initial query was that i assumed that now i was in H1 status, but i wanted to be in H4 status. Hence if i wanted to be in H4 status, then i needed to do change of status from H1 to H4 using I539 form.

From your earlier reply, does that mean that i am now in valid H4 status with valid H4 I94. I need not do anything further for H4 status.

Thanks a lot for all the help.

[txh1b]

The last action based on your post on your status is H1b.

This is how it works:

Effective date of last action on H1b even if it was approved earlier in June was in Oct.

H4 application if approved in August would still be superseded by the H1b as last action as it's effective date for COS was after the H4 was approved. Your status is H1b as per my understanding after Oct 1st unless the H4 was approved after Oct 1st, 2008.

Currently you remain out of status without work on H1b. Your employer Must pay you as per the law. No status changes are permitted while you remain in the US currently as you are out of status for a month.