H1 to H4 without H1 ever used

[babuc]

Hi,
I am on a complicated visa issue and looking for your help and suggestions. Sorry for the long post.

I am on L1B Visa and my wife is in L2-EAD and she was working with an Employer B till 13 Sep 2013. My L1B visa and I-94 has expired on 22 Sep 2013 and my employeer A has filed L1 extension for me and L2 extension Extend Current staus for my wife on 20 Sep 2013. I will be completing 5 years in L1B on 17 Oct 2013.

My wife's employer B had filed for H1B for my wife and it was approved and was supposed to be effective starting 1 Oct 2013. Unfortunately due to
financial issues, her employer had terminated the L2-EAD job on 13 Sep 2013 and will also be not able to give the job on H1 from 1 Oct 2013.

I have applied for H1B and had got a RFE which asks for additional documents.

The next steps i will be taking further are as below:
1.Submit the documents for the H1 RFE and convert it to Premium processing so that i can get the results before 17 Oct 2013 before i complete 5 years in L1B.
2. Apply for H4 change of status for my wife during my H1 RFE filing.
3. If i dont get a decision by this time then i and my wife will leave US by 17 Oct 2013. After the visa is approved, I will get H1 Stamping and my wife will get H4 stamped(if she does not get a job by this time) and come back to US.

I have the following queries below:
1.Since a L2 Extension was filed for my wife on 20 Sep 2013, will there be a change of status to H1 on 1 Oct 2013.
2.Since the employer B will not be giving the job on H1 and will not pay, should i ask the employer to revoke her visa.
3.If her visa is revoked, will it cause any issue in getting a new H1/ transfer to a new employer since she will not be having pay stubs in H1.
4.If her H1 visa is revoked, and she gets a job in a new company, should we ask the new employer to file a new H1 cap exempt petition for her.
5.Can a person have a H1 and then request for H4. In case her visa is not revoked by the time my employer files an H4 for her, will there be any issues.
6.If we go to my native country for stamping after my H1 is approved, can my wife get H4 stamped with her H1B revoked or not revoked.
7.Is there any way where i can stay beyond 1825 days (5 years) in L1B if my H1 visa is not approved by this time.

Thanks.
Looking for your valuable response.

[raghvi]

I am wondering if L1 5 Years are completing in Oct 2013 then has your employer filed extension only for 22 Sep 2013 -17 Oct 2013 period? Or they have filed for L1B to L1A COS? Or they have filed for L1B to H1 COS? Is your L1 and H1 employer same?

Technically as Your L1 I-94 has expired on 22-Sep-2013, validity of your move to H1, your spouse's move to H1, or your spouse's move to H4, without leaving US, all depend upon you first getting a successful L1 extension.

This is my opinion not legal advice.

[babuc]

I am wondering if L1 5 Years are completing in Oct 2013 then has your employer filed extension only for 22 Sep 2013 -17 Oct 2013 period? Or they have filed for L1B to L1A COS? Or they have filed for L1B to H1 COS? Is your L1 and H1 employer same?

Technically as Your L1 I-94 has expired on 22-Sep-2013, validity of your move to H1, your spouse's move to H1, or your spouse's move to H4, without leaving US, all depend upon you first getting a successful L1 extension.

This is my opinion not legal advice.

Thanks for your response.
My company has filed L1B Extension on 20 Sep 2013. My L1 and H1 employer are same and they had filed a L1B to H1B COS in April.
I had got a RFE for H1B. My employer filed L1 extension so that i can continue to stay in L1B till i complete 5 years in 17 Oct 2013 and within this period submit the H1B RFE in PP so that i don't have to leave US. Generally the L1 extension results come after 2-3 months. In this case we are not waiting for the L1 Extension results.

If i dont get a decision of my H1B within 17 Oct 2013, then i and my wife will leave US by 17 Oct 2013 so that i dont overstay in L1B.

My wife's employer had filed a H1B for her and it was approved with a COS from 1 Oct 2013. However they are not going to give the job now.

Now my queries are:
1.Since a L2 Extension was filed for my wife on 20 Sep 2013, will there be a change of status for her to H1B on 1 Oct 2013.
2.Since her employer B will not be giving the job on H1 and will not pay, should i ask the employer to revoke her visa.
3.If her visa is revoked, will it cause any issue in getting a new H1/ transfer to a new employer since she will not be having pay stubs in H1.
4.If her H1 visa is revoked, and she gets a job in a new company, should we ask the new employer to file a new H1 cap exempt petition for her.
5.Can a person have a H1 and then request for H4. In case her visa is not revoked by the time my employer files an H4 for her, will there be any issues.
6.If we go to my native country for stamping after my H1 is approved, can my wife get H4 stamped with her H1B revoked or not revoked.
7.Is there any way where i can stay beyond 1825 days (5 years) in L1B if my H1 visa is not approved by this time.

Thanks

[babuc]

Any response is greatly appreciated.

If i am in H1, can my employer request for an H4 for my wife if her H1 visa is not yet revoked? (Employer B which processed her visa with COS on 1 Oct 2013 can now not give the job due to financial issues).

Is it mandatory for the employer to revoke H1 visa if they do not pay the salary?

What is the impact if my wife's H1 is not revoked and then a change of status is done to H4 and later some other employer C wants to provide a job to her.

[Nattybone]

Any response is greatly appreciated.

If i am in H1, can my employer request for an H4 for my wife if her H1 visa is not yet revoked? (Employer B which processed her visa with COS on 1 Oct 2013 can now not give the job due to financial issues).

Is it mandatory for the employer to revoke H1 visa if they do not pay the salary?

What is the impact if my wife's H1 is not revoked and then a change of status is done to H4 and later some other employer C wants to provide a job to her.

Hello, Babu.

With my limited experience with H1B, i am sharing a couple of my thoughts:

1) Yes. Your employer can file for H4 for your wife from H1. One can do Change of Status from 1 visa to another, as long as the visa criteria is met. What is problematic is one does not have a legal status, which could be the case with your wife. If she is not getting paid on H1B and during a Change of Status to H4, USCIS asks for pay stubs then you could hit difficult time. So, most important is to maintain legal status. Rest everything can fall in place.

2) There are some requirements for the employer if the intent to employ someone on H1B is no longer there. Many employers do not follow the rules.

3) If her H1 is not revoked and she does not change status, then she will be Out of Status, correct? Then switching to any other status will be difficult.

I hope this helps.

Cheers,

[veenam]

Hi,


I got my H1B in october 2013 with XYZ employer. I don't have project from day one I entered US. Its 8th month May. Employer did run payroll for only Feb. H1 is valid till September 2014.

Questions are :

* Am I in H1 status legally?

* What if I don't get project by June End? How long I can be without project on H1?

* Also can I transfer my h1 to other employer? I have 2 pay stubs for Feb only ,what is the process - do I get the project then get transfer?

* if transfer is possible can I also file for extension together as my H1 is valid till 2014 September ( ABC employer I talked said extension cannot be done with transfer- I need to be on their payroll for 3-4 months.

* If I plan to change my status on F2 what is the process? how soon should I start? Do I get f2 I-20 first then apply for change of status?

* Once I am on f2 and if I find project, can I come back on H1? My H1 is valid till Oct 2014. what is the process and do I come under 65000 quota? how complicated it is?

*If I want to go back to H4 status.What is the process to do so?Are my paystubs important to go from H1 to H4?or My Husbands pay stubs are enough?

Your sincere responses would be appreciated!!

Thank you in advance.