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A complicated situation with H4->H1 status change and impending H4 extension

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  • A complicated situation with H4->H1 status change and impending H4 extension

    Hi,

    I am having quite a situation with my Wife's status in the US. We both are residing in the US currently. I have filed my H1-B extension and got it approved. My wife is currently on H4 status. We have also filed a H1 for her from another employer on 1st of April this year. But, the USCIS hasn't yet responded to her petition. It still shows up in the initial review state. The issue is that her H4 is getting expired on September 30th (validity of my old H1B). Given this situation, I have the following 2 questions:

    1. Is it okay to file a H4 extension at this time? Would that have any problems with the ongoing H1-B petition and status change from H4 to H1B

    2. She also has a family emergency in India. If she travels after filing a H4 (assuming (1) above doesn't have any problems), can she come back in her H4 status (after getting a H4 visa stamped in the US consulate) even if her H1-B is approved while she was in India and continue with her H1-B after she is here?

    Thanks,
    Karthik

  • #2
    Originally posted by karthik3186 View Post
    Hi,

    I am having quite a situation with my Wife's status in the US. We both are residing in the US currently. I have filed my H1-B extension and got it approved. My wife is currently on H4 status. We have also filed a H1 for her from another employer on 1st of April this year. But, the USCIS hasn't yet responded to her petition. It still shows up in the initial review state. The issue is that her H4 is getting expired on September 30th (validity of my old H1B). Given this situation, I have the following 2 questions:

    1. Is it okay to file a H4 extension at this time? Would that have any problems with the ongoing H1-B petition and status change from H4 to H1B
    -- No, she should not do that. She is allowed to stay in the US based on her pending change of status.

    2. She also has a family emergency in India. If she travels after filing a H4 (assuming (1) above doesn't have any problems), can she come back in her H4 status (after getting a H4 visa stamped in the US consulate) even if her H1-B is approved while she was in India and continue with her H1-B after she is here?
    -- That will create complications. See below.

    Thanks,
    Karthik
    See above.

    If she travels while her change of status is pending 3 things can happen,
    1. H1 approved with/without change of status while she is abroad - She will then have to obtain H1B Visa and return in H1B status on or after Sep 20. She can then start working on Oct 1.
    2. H1 is approved with change of status after she returns in H4 status (returns before Oct 1) - She will then have to start working in H1B status from Oct 1 or H1B effective date.
    3. H1 is approved but without change of status - She will then have to explicitly change status to H1B by either petition amendment or leaving and returning again. She will have to do this before her H4 I-94 expires (she will get a new I-94 on returning, she can use the existing H4 Visa and your new H1 approval to return).
    This is my opinion and not legal advice.

    Comment


    • #3
      Originally posted by kabkaba View Post
      See above.

      If she travels while her change of status is pending 3 things can happen,
      1. H1 approved with/without change of status while she is abroad - She will then have to obtain H1B Visa and return in H1B status on or after Sep 20. She can then start working on Oct 1.
      2. H1 is approved with change of status after she returns in H4 status (returns before Oct 1) - She will then have to start working in H1B status from Oct 1 or H1B effective date.
      3. H1 is approved but without change of status - She will then have to explicitly change status to H1B by either petition amendment or leaving and returning again. She will have to do this before her H4 I-94 expires (she will get a new I-94 on returning, she can use the existing H4 Visa and your new H1 approval to return).
      I inadvertently made one mistake in my earlier post while explaining the situation. I just realized that a COS was not opted when the the H1-B petition was applied. There is no pending change of status. Does that change the answers to my original question?

      My apologies on not being clear the first time.

      - Karthik.

      Comment


      • #4
        In that case she should apply for extension of status before her I-94 expires.

        If she is leaving the US before Sep 30 anyway, extension of status is not needed/relevant. She should just return with your extended H1B petition so that her new I-94 will match your H1B status expiry date.
        If she returns before her H4 Visa expires, she can use the same Visa with your new H1B approval. However, recently CBP is issuing I-94 based on Visa expiry and not petition expiry, if that happens she will have to apply for extension of status after returning. She can also apply for H4 Visa while abroad and use that for returning.
        This is my opinion and not legal advice.

        Comment


        • #5
          Originally posted by kabkaba View Post
          In that case she should apply for extension of status before her I-94 expires.

          If she is leaving the US before Sep 30 anyway, extension of status is not needed/relevant. She should just return with your extended H1B petition so that her new I-94 will match your H1B status expiry date.
          If she returns before her H4 Visa expires, she can use the same Visa with your new H1B approval. However, recently CBP is issuing I-94 based on Visa expiry and not petition expiry, if that happens she will have to apply for extension of status after returning. She can also apply for H4 Visa while abroad and use that for returning.
          The easiest option would be to attend the relevant interview and get the stamping done. If she wishes to work on h1, to get H1 stamped in passport and enter around 30-Sep-2013 on H1, if she wants to remain on H4, to get H4 stamped and return on H4.

          This is my opinion not legal advice.

          Comment

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