H4 to H-1B Change of Status - Travel and stamping

[krisprasad]

Hi,
My wife got her H-1B petition approved in June 2013 for the current year (i.e. staring Oct 1, 2013).
She is currently on her H4 visa and am on a H1.
My current H1 (and the I-94) expires Aug 2013 and hence it was extended and approved in June 2013.

We need to travel to India in Aug 2013 and will return mid September 2013 (before the start of my wife H1 status).
However, we need to go in for stamping (because of my extension) -

1. I would go for my H1 stamping as usual. What visa should my wife go with - H4 or her newly approved H1?
2. Is it fine (legal?) to go for a H4 stamping even with an approved H-1B COS? Is there any risk of forfeiting her H-1B?
3. Should it be declared anywhere (DS 160, etc. ) about the approved H-1B if we go with a H4 visa appointment?


Thanks
Kris

[kabkaba]

Hi,
My wife got her H-1B petition approved in June 2013 for the current year (i.e. staring Oct 1, 2013).
She is currently on her H4 visa and am on a H1.
My current H1 (and the I-94) expires Aug 2013 and hence it was extended and approved in June 2013.

We need to travel to India in Aug 2013 and will return mid September 2013 (before the start of my wife H1 status).
However, we need to go in for stamping (because of my extension) -

1. I would go for my H1 stamping as usual. What visa should my wife go with - H4 or her newly approved H1? -- She should apply for H1B Visa while abroad and return in H1B status on or after Sep 20 (10 days before Oct 1).
2. Is it fine (legal?) to go for a H4 stamping even with an approved H-1B COS? Is there any risk of forfeiting her H-1B? -- She can of course apply for H4 Visa since she is married to an H1B holder, but if she travels to the US with H4 Visa, her previously approved change of status to H1B becomes voided. She will in that case have to again change status to H1B in order to start working.
3. Should it be declared anywhere (DS 160, etc. ) about the approved H-1B if we go with a H4 visa appointment? --There is no question that asks about any non-immigrant petitions. But, she should not apply for H4 Visa like above.


Thanks
Kris

See above.

[krisprasad]

Thanks for reply kabkaba!

1. Since we would return mid sept which is not 10 days before Oct 1, my wife still needs a H4 to enter. Hence, we are going in for H4 stamping - Is this correct?
2. Again, since the change of status has not kicked in by mid sept, will this scenario still void her earlier change of status if entered on a H4?
3. Even if the change of status becomes void, the H-1B petition stays approved and can it be used for change of status again after re-entry?

[kabkaba]

Thanks for reply kabkaba!

1. Since we would return mid sept which is not 10 days before Oct 1, my wife still needs a H4 to enter. Hence, we are going in for H4 stamping - Is this correct? -- You can do that if you want to but read below.
2. Again, since the change of status has not kicked in by mid sept, will this scenario still void her earlier change of status if entered on a H4? -- First check if H1 is approved with change of status or not (with I-94 at the bottom of approval notice). If she had H4 Visa and if she had just traveled and returned with the same Visa, the change of status would not have been voided, but since she is actually applying for the Visa and then traveling, the change of status becomes void or at the very least a matter of confusion. Best way to avoid this is by applying for H1B Visa and returning in H1B status, but the date can be up to 10 days before Oct 1.
3. Even if the change of status becomes void, the H-1B petition stays approved and can it be used for change of status again after re-entry? -- Yes, the petition remains valid and irrespective of anything her eligibility for cap-exempt petition (by same or different employer) also remains.

See above.

[GunaDev]

I have a h4/h1 confusion too.. .
My H1 stamping was refused after 221(g) at the chennai consulate after wait time of 2.5 months.The letter from the consulate stated that they are sending back the docs to USCIS for review recommending revocation.
Previously I was on H4.I travelled to India and went for H1 stamping. Got refusal. Now Im planing to go for H4 stamping ASAP as I want to join my husband in the US.

1) How good is my H4 stamping case? Should my H1 be revoked before I appear for H4.
2) My husband is with the same employer who filled my H1 . He is working for the same employer since 2009. Will this have problems in my H4 stamping? or will his H1 be in trouble ?

Im stuck up in India with my kid missing his dad. So I want to get back asap. Any help would be greatly appreciated.

[kabkaba]

I have a h4/h1 confusion too.. .
My H1 stamping was refused after 221(g) at the chennai consulate after wait time of 2.5 months.The letter from the consulate stated that they are sending back the docs to USCIS for review recommending revocation.
Previously I was on H4.I travelled to India and went for H1 stamping. Got refusal. Now Im planing to go for H4 stamping ASAP as I want to join my husband in the US.

1) How good is my H4 stamping case? Should my H1 be revoked before I appear for H4. -- Your H1 denial must be mentioned in the DS160 application, but it will not affect your chances of getting H4 Visa. Nothing needs to be done with the H1 petition.
2) My husband is with the same employer who filled my H1 . He is working for the same employer since 2009. Will this have problems in my H4 stamping? or will his H1 be in trouble ? -- If the denial was related to some wrong practices by your employer, the H4 application can be affected, since the principal H1 is also filed by the same employer.

Im stuck up in India with my kid missing his dad. So I want to get back asap. Any help would be greatly appreciated.

See above.

[GunaDev]

See above.

Thank you KabKaba.

My H1 got rejected stating insufficient documentation.we have no more details regarding what was missing or what the consulate found unsatisfactory.
I was filled for an inhouse project. To the best of my knowledge there was no misinterpreted document that was submitted.
But my husband is at client site.
How do you see this case? What docs do you suggest that I need to carry related to my husband's H1 to support my H4.
I already have a H4 stamped last year for the same employer ( it has expired now) . Will this be of any advantage?
Please advice.

[kabkaba]

In most consulting company cases, Inhouse project = Bench. If your spouse is properly placed at another company's location, H4 is possible. But be prepared for extra scrutiny and a possible administrative processing. LCA and petition should reflect his correct work location and there should be proper employee-employer relationship.

[GunaDev]

In most consulting company cases, Inhouse project = Bench. If your spouse is properly placed at another company's location, H4 is possible. But be prepared for extra scrutiny and a possible administrative processing. LCA and petition should reflect his correct work location and there should be proper employee-employer relationship.

LCA and I129 reflect the correct address.
My husband can also get a client letter certifying his roles and project.

What should I have to establish the employee-employer relationship? I am not clear as to what is expected by USCIS on "employee-employer" relationship.Can you please help with this point?

[kabkaba]

The consular officer will ask for specific documents if they think that the employee-employer relationship does not exist.

[GunaDev]

The consular officer will ask for specific documents if they think that the employee-employer relationship does not exist.

What could those docs be? Any sugestions. So I can carry those with me.
Will timesheets and appraisal docs help? Also my husband's employer has weekly calls with him.Will I need to carry any of these proofs?

[kabkaba]

Yes, do that.

[GunaDev]

Yes, do that.

One last question : What should I answer if some qn is asked regarding my H1 refusal.
for ex : If the VO asks - what are you planning to do with the refused H1 petition?
Please advice

[GunaDev]

One last question : What should I answer if some qn is asked regarding my H1 refusal.
for ex : If the VO asks - what are you planning to do with the refused H1 petition?
Please advice

Happy Update:

H4 stamped successfully without much questions.

[animini]

Currently on H4 and applied for H1B.Is it safe to travel to Bahamas in May via Cruise

Hi Everyone!!

Currently I am on H4 and living in USA for a few months now. I have now applied for H1B Visa and the status is not yet known (just application submitted, no further communication). The issue is we booked a trip to Bahamas and now got to know that it is unsafe to travel out of USA during VISA status change. I read that the application stands cancelled if I travel out of USA or I can enter USA only after the new status is approved.

I do not know if I94 would be updated when we travel to Bahamas via Cruise (in May last week).

Please help me as I am very upset about the dream trip in danger!!!!

Thanks.