H4 to H1B trasfer start date

[sriram_H1B]

Hi ,

My wife's H1B is approved , who is currently in US on H4 VISA .

My question is about the H1B start date --

Is it mandatory that she should start working from 1st Octber 2013 ?

Her H4 is valid till October 2015 , if she is not working after Octber 2013 I am assuming she will be considered as H4 , Is this correct ?

If I apply for SSN , is it mandatory that she should start working ?

Please let me know

Sriram

[kadkhiq81]

H4 to H1B trasfer start date

1. She can continue on h4 even after oct 1st however she need to amend or apply for change of status to h1 to start working.

This is my opinion.

[raghvi]

1. She can continue on h4 even after oct 1st however she need to amend or apply for change of status to h1 to start working.

This is my opinion.

I believe the first part is not correct. Why did the employer file a COS when they didnt have any concrete work for you?

If H4 to H1 COS has been approved with a new I94, then the person has to start working on H1 from H1 start date that is, generally, 01-Oct-2013 . If the person doesnt work and get paid as per H1 then he/she goes out of status. One can complain to DOL if employer is not paying as per LCA once H1 starts, irrespective whether they have work for you or not.

if you don't want to automatically move to H1 then the only way to prevent this is either to do a leap frog or file amendment to H1 to convert to consular processing before H1 start date.

This is my opinion not legal advice.

[kadkhiq81]

H4 to H1B trasfer start date

Thank you for your response Raghvi,

I might be wrong and sorry if I have provided any wrong information on this topic above.

To my better understanding, if my wife on H4 currently in the US and got her H1 approved petition, and would like to start working from Jan 2014, can her employer apply for COS or Adjustment of Status in the month of Jan to convert from H4 to H1 ? Is that possible? Or do they have to apply COS before Oct 1st to avoid automatic conversion to H1?

What does consular processing mean exactly in this scenario If the beneficiary is already in the US in different visa status?

Please respond and I am really looking out for it.

[sriram_H1B]

I believe the first part is not correct. Why did the employer file a COS when they didnt have any concrete work for you?

If H4 to H1 COS has been approved with a new I94, then the person has to start working on H1 from H1 start date that is, generally, 01-Oct-2013 . If the person doesnt work and get paid as per H1 then he/she goes out of status. One can complain to DOL if employer is not paying as per LCA once H1 starts, irrespective whether they have work for you or not.

if you don't want to automatically move to H1 then the only way to prevent this is either to do a leap frog or file amendment to H1 to convert to consular processing before H1 start date.

This is my opinion not legal advice.

Hi ,

Thanks for the quick response .

Its not about my employer , she want to join after couple of months . Is it possible ?

Sriram

[raghvi]

Thank you for your response Raghvi,

I might be wrong and sorry if I have provided any wrong information on this topic above.

To my better understanding, if my wife on H4 currently in the US and got her H1 approved petition, and would like to start working from Jan 2014, can her employer apply for COS or Adjustment of Status in the month of Jan to convert from H4 to H1 ? Is that possible? Or do they have to apply COS before Oct 1st to avoid automatic conversion to H1?

What does consular processing mean exactly in this scenario If the beneficiary is already in the US in different visa status?

Please respond and I am really looking out for it.

As said earlier, if H4 to H1 has been approved as a Change of Status, then in order to maintain H1 status the person has to start working on H1 from H1 start date.

Typically if the employer wants to employee to join work from Jan 2014, the H1 petition is applied 6 Months before start date that is July 2013. But with the demand of H1 rising sharply this year the Cap filled in first week of April itself. Hence there was no option but to apply for H1 in April 2013 with start date of Oct 2013.

If employee would not want to start from 01-Oct-2013 but a later date, the H4 to H1 should have been applied in April 2013 as consular processing not as COS. And in Jan 2014 the employer should have filed an amendment to convert Consular Processing to Change of Status (COS).

Now it is too late to convert the already approved COS to Consular Processing as there is only 14 Days remaining, even if applied in premium processing.

Does the H1 employer know that your spouse wants to work only from Jan 2014 not Oct 2013?

Now in order to remain in H4 the easiest option would be to do a "leap frog". Leave US before H1 start date and return using valid H4 visa.

Typically one should plan for such things much ahead, because when one signs on the dotted lines of the forms, both the employer and employee are basically telling USCIS that they have work and are willing to work ,respectively, from the H1 start date.

This is my opinion not legal advice.

[kadkhiq81]

Thank you once again Raghvi,

I have understood mostly however just wanted to confirm by explaining my situation bit more detail.

My Wife was in India when her H1B fresh petition was submitted. In the month of May 2013, She had applied for her H4 and came to the US using her H4 visa. these two are different now and her employer have submitted her H1 petition as a fresh one (not COS)

We were told by her employer that we can amend change of status to H1 whenever she would like to start to work. Is that true? What should we do now If she would like to work from Jan 2014? I am bit confused and Sorry for repeating the question again. please direct me.

[raghvi]

I wasnt aware of this. If H1 petition was applied while your spouse was outside US then it would have been applied as consular process. Now that your wife is in US, the same H1 petition can be used to file a H4 to H1 COS by the employer.

So if your spouse wants to work in Jan 2014, then the employer can file a H4 to H1 COS in Dec 2013 (using the already approved H1 petition) with a start date of Jan 2014.

This is my opinion not legal advice.

[kadkhiq81]

That's all Mam -..Thank you once again!!