Announcement

Collapse
No announcement yet.

H1B to H4 to H1B

Collapse
X
 
  • Filter
  • Time
  • Show
Clear All
new posts

  • H1B to H4 to H1B

    Hello friends,

    Let me first describe my situation:

    * I was working for company 'A' till mid September 2013. I left my job during mid September 2013.

    * First H4 filing:
    After that, I was searching for new job. But, as I did not find new job soon, in the last week of October, I applied for Change of Status from H1B to H4 (There was a gap of almost 40 days between my last day of working with company 'A' and filing for H4), as my wife is working on H1B visa.

    * I am sure that my previous employer (company 'A') had not revoked my H1B till my H4 petition was filed.

    * Second H4 filing:
    In first week of November 2013, my wife changed her employer. So, I again filed for Change of Status from H1B to H4 with her new employer.

    * H4 to H1B for me:
    In January 2013, I received offer from company 'B' and they filed H1B for me.

    * RFE for H1B:
    I received RFE for this H1B asking for the final decisions of both of the H4 petitions filed for me. RFE says if one or both of those H4 petitions are denied or withdrawn, my H1B will go for consular processing and I have to go out of the country for stamping. Also, my employer can also ask for consular processing. But, I did not want to appear for stamping interview, as I thought the gap in last day of work with company ‘A’ and my first H4 filing will create problem for my H1B stamping. Both H4's were in 'Initial review' at the time when I received this RFE. So, I decided to wait for the decisions of those H4's.

    * RFE for First H4:
    Recently, I received RFE for first H4 filed and it is asking for the pay records of me and my wife for the months of September and October 2013. I have my wife’s pay records for both those months. But, I have my pay records only for the month of September 2013. As I did not work during the month of October, I do not have my pay records for that month.

    * Status of Second H4:
    Second H4 filed is still in initial review. But, I hope that they will process it soon.

    ------------------------------------------------------------------------------

    After having described my current situation, I need guidance from you people:

    1. What do you think should I respond to RFE for First H4? (If I respond with all the documents, except my pay records for October 2013, will they decline it?)

    2. If I attach some cover letter explaining them that there was delay from my side in filing H4, will they consider it and approve H4?

    3. If my H4 gets declined, then I have no option other than going for Consular Processing. So, does that decline reduce my chances of getting H1B visa stamped?

    4. If I decide to withdraw both of the H4 petitions filed and appear for Consular Processing interview in my country, what are my chances of getting H1B visa stamped?

    5. Please suggest me the best way to handle this situation.

    (Thanks in advance for reading this really long post and your answers)
    Last edited by myvisastatus; 02-09-2014, 04:06 PM. Reason: Adding text

  • #2
    Originally posted by myvisastatus View Post
    Hello friends,

    Let me first describe my situation:

    * I was working for company 'A' till mid September 2013. I left my job during mid September 2013.

    * First H4 filing:
    After that, I was searching for new job. But, as I did not find new job soon, in the last week of October, I applied for Change of Status from H1B to H4 (There was a gap of almost 40 days between my last day of working with company 'A' and filing for H4), as my wife is working on H1B visa.

    * I am sure that my previous employer (company 'A') had not revoked my H1B till my H4 petition was filed.

    * Second H4 filing:
    In first week of November 2013, my wife changed her employer. So, I again filed for Change of Status from H1B to H4 with her new employer.

    * H4 to H1B for me:
    In January 2013, I received offer from company 'B' and they filed H1B for me.

    * RFE for H1B:
    I received RFE for this H1B asking for the final decisions of both of the H4 petitions filed for me. RFE says if one or both of those H4 petitions are denied or withdrawn, my H1B will go for consular processing and I have to go out of the country for stamping. Also, my employer can also ask for consular processing. But, I did not want to appear for stamping interview, as I thought the gap in last day of work with company ‘A’ and my first H4 filing will create problem for my H1B stamping. Both H4's were in 'Initial review' at the time when I received this RFE. So, I decided to wait for the decisions of those H4's.

    * RFE for First H4:
    Recently, I received RFE for first H4 filed and it is asking for the pay records of me and my wife for the months of September and October 2013. I have my wife’s pay records for both those months. But, I have my pay records only for the month of September 2013. As I did not work during the month of October, I do not have my pay records for that month.

    * Status of Second H4:
    Second H4 filed is still in initial review. But, I hope that they will process it soon.

    ------------------------------------------------------------------------------

    After having described my current situation, I need guidance from you people:

    1. What do you think should I respond to RFE for First H4? (If I respond with all the documents, except my pay records for October 2013, will they decline it?)

    2. If I attach some cover letter explaining them that there was delay from my side in filing H4, will they consider it and approve H4?

    3. If my H4 gets declined, then I have no option other than going for Consular Processing. So, does that decline reduce my chances of getting H1B visa stamped?

    4. If I decide to withdraw both of the H4 petitions filed and appear for Consular Processing interview in my country, what are my chances of getting H1B visa stamped?

    (Thanks in advance for reading this really long post and your answers)
    It is always suggested to resign while on H1 only after filing a COS to H4. While on H1 The day you stop getting paid, you go out of status, and if one is out of status, a subsequent change of status to any other visa is not possible. With that said, both pf your H4 COS are likely to be denied, making you out of status for Sep 2013 to till date.
    There are no such thing as chances , its based on several factors, the longer the out of status period the more trouble for you.
    I would suggest you go for consular processing of H1, leave US, go for H1 stamping, if refused or put into admin processing, go for H4 stamping.

    This is my opinion not legal advice.

    Comment


    • #3
      Originally posted by raghvi View Post
      It is always suggested to resign while on H1 only after filing a COS to H4. While on H1 The day you stop getting paid, you go out of status, and if one is out of status, a subsequent change of status to any other visa is not possible. With that said, both pf your H4 COS are likely to be denied, making you out of status for Sep 2013 to till date.
      There are no such thing as chances , its based on several factors, the longer the out of status period the more trouble for you.
      I would suggest you go for consular processing of H1, leave US, go for H1 stamping, if refused or put into admin processing, go for H4 stamping.

      This is my opinion not legal advice.
      Hello Raghvi,

      Thanks for your reply. Actually, mine was a lay off. So, I could not file for COS in advance. And even after that happened, I did not get proper guidance that time. Initially, I was under the impression that till the time my employer does not revoke H1B, I will be in status. But, later I came to know about this thing and I filed for COS in the last week of October 2013.

      If I go for consular processing and H1B stamping, is there any way to convince them that I filed for COS late and ask them to forgive that for one time?

      - - - Updated - - -

      @Others,

      Please let me know your opinions too. Thanks.

      Comment


      • #4
        H1B to H4 to H1B

        As Raghvi stated, that's the only best option.

        Yes, You can give a try explaining them and its upto the office to decide upon.

        My best wishes to you!!

        Comment


        • #5
          Originally posted by kadkhiq81 View Post
          As Raghvi stated, that's the only best option.

          Yes, You can give a try explaining them and its upto the office to decide upon.

          My best wishes to you!!
          Thanks, kadkhiq81.

          @Others,
          Please let me know your suggestions too.

          Comment


          • #6
            Overstay?

            @Raghvi and kadkhiq81,

            If both of my COS for H1B to H4 are denied, then my out of status period will start from the day I stopped working or the day I get rejection? Won't they consider that I applied for H4 and then for H1B as well?

            Comment


            • #7
              Originally posted by myvisastatus View Post
              Hello Raghvi,

              Thanks for your reply. Actually, mine was a lay off. So, I could not file for COS in advance. And even after that happened, I did not get proper guidance that time. Initially, I was under the impression that till the time my employer does not revoke H1B, I will be in status. But, later I came to know about this thing and I filed for COS in the last week of October 2013.

              If I go for consular processing and H1B stamping, is there any way to convince them that I filed for COS late and ask them to forgive that for one time?

              - - - Updated - - -

              @Others,

              Please let me know your opinions too. Thanks.
              Hello, myvisastatus.

              You can explain your case to the visa official for your H1B, it is possible that view your case sympathetically. It is totally their call. I agree with Raghvi and Kadkhiq that you should leave US and go for stamping.

              I am not sure if it would help that you wait and collect the H4 decline letter (which should state that you are out of status and should leave the country) when it reaches you. That way you could say that you had no idea about the visa procedure and the moment you received a notification asking you to leave the country, you left. I am not sure if this is the best approach and how much more time will the H4 decline (H4 1 - If and when you respond to the RFE or H4 2) will take to reach you.

              Also, we must keep in mind that we are actually out of status now in USA (but, the other side is there is no communication to you from USCIS in this regard. And tomorrow you could always say that you did not know.)

              Hope this helps.

              Wishing you luck.

              Cheers,
              These are my personal thoughts. I am not a professional.

              Wishing you luck.

              Comment


              • #8
                Out of status?

                Originally posted by raghvi View Post
                It is always suggested to resign while on H1 only after filing a COS to H4. While on H1 The day you stop getting paid, you go out of status, and if one is out of status, a subsequent change of status to any other visa is not possible. With that said, both pf your H4 COS are likely to be denied, making you out of status for Sep 2013 to till date.
                There are no such thing as chances , its based on several factors, the longer the out of status period the more trouble for you.
                I would suggest you go for consular processing of H1, leave US, go for H1 stamping, if refused or put into admin processing, go for H4 stamping.

                This is my opinion not legal advice.
                Hello,

                I am confused regarding the term 'out of status'. When does one go out of status? Only after the last date on I-94 card? Actually, my I-94 from my previous employer is valid till some date in 2015. So, am I still considered out of status?

                Thanks in advance.

                - - - Updated - - -

                Originally posted by Nattybone View Post
                Hello, myvisastatus.

                You can explain your case to the visa official for your H1B, it is possible that view your case sympathetically. It is totally their call. I agree with Raghvi and Kadkhiq that you should leave US and go for stamping.

                I am not sure if it would help that you wait and collect the H4 decline letter (which should state that you are out of status and should leave the country) when it reaches you. That way you could say that you had no idea about the visa procedure and the moment you received a notification asking you to leave the country, you left. I am not sure if this is the best approach and how much more time will the H4 decline (H4 1 - If and when you respond to the RFE or H4 2) will take to reach you.

                Also, we must keep in mind that we are actually out of status now in USA (but, the other side is there is no communication to you from USCIS in this regard. And tomorrow you could always say that you did not know.)

                Hope this helps.

                Wishing you luck.

                Cheers,
                Thanks for the advice!

                Will you please answer my Q regarding 'out of status' term that I posted just now?

                Comment


                • #9
                  H1B to H4 to H1B

                  Out of status and Illegal stay are two different stuff.

                  1. If you are unable to maintain the status (in your case, you did not apply for COS before your last working day) and if you are staying within I 94 date, than it is Out of status.

                  2. If you stay beyond your current I 94 date, then all the days you have stayed here considered as the Illegal stay.

                  This is my opinion.

                  Comment


                  • #10
                    Originally posted by myvisastatus View Post
                    Hello,

                    I am confused regarding the term 'out of status'. When does one go out of status? Only after the last date on I-94 card? Actually, my I-94 from my previous employer is valid till some date in 2015. So, am I still considered out of status?

                    Thanks in advance.

                    - - - Updated - - -



                    Thanks for the advice!

                    Will you please answer my Q regarding 'out of status' term that I posted just now?
                    Hello, myvisastatus.

                    There are two things: i) Visa, ii) Status

                    Visa - Is the stamp / sticker you get on your passport to enter USA. It is a permit to enter USA. Upon entering USA, you need to maintain legal status to continue living in USA. If you enter USA on a F1 Student visa and fail to pay the University fee and if the university withdraws its I20 or sponsorship, then you are out of status. It means you have no legal status in the country. Your visa on the passport might still be valid for another year, but at the moment your legal status in the USA ceases to exist.

                    Status - This is the legal status you maintain when inside the USA. Your entry in USA is based upon the visa on the passport. Depending on what visa you are on, your status gets defined. For F1 - University rules apply (Like Fee, Attendance, Test Score etc), For H1B - Your monthly payroll needs to be run. When the alien / visitor fails to meet the criteria for his visa, he loses status. Or legal stay in the country. While your visa stamp might still be valid, but your current stay is in violation. Sooner or later, you will be communicated of this by the USCIS, and the longer the status violation the severe the case gets, and you will be asked to leave the country.

                    As you entered on H1B visa, your status in USA was based on the monthly payroll, so the moment that payroll stopped running, you were out of status. When you file for switching to H4, you are not switching visas, you are switching status from H1B to H4. Because visa is what is on your passport. You are switching status to H4. Now, as you no longer maintain your status, you are not eligible to switch to any other status. The longer you stay in USA without any status, the more complex the situation will keep getting for you.

                    I hope this helps.

                    Wishing you luck.

                    Cheers,
                    These are my personal thoughts. I am not a professional.

                    Wishing you luck.

                    Comment


                    • #11
                      Originally posted by kadkhiq81 View Post
                      Out of status and Illegal stay are two different stuff.

                      1. If you are unable to maintain the status (in your case, you did not apply for COS before your last working day) and if you are staying within I 94 date, than it is Out of status.

                      2. If you stay beyond your current I 94 date, then all the days you have stayed here considered as the Illegal stay.

                      This is my opinion.
                      Originally posted by Nattybone View Post
                      Hello, myvisastatus.

                      There are two things: i) Visa, ii) Status

                      Visa - Is the stamp / sticker you get on your passport to enter USA. It is a permit to enter USA. Upon entering USA, you need to maintain legal status to continue living in USA. If you enter USA on a F1 Student visa and fail to pay the University fee and if the university withdraws its I20 or sponsorship, then you are out of status. It means you have no legal status in the country. Your visa on the passport might still be valid for another year, but at the moment your legal status in the USA ceases to exist.

                      Status - This is the legal status you maintain when inside the USA. Your entry in USA is based upon the visa on the passport. Depending on what visa you are on, your status gets defined. For F1 - University rules apply (Like Fee, Attendance, Test Score etc), For H1B - Your monthly payroll needs to be run. When the alien / visitor fails to meet the criteria for his visa, he loses status. Or legal stay in the country. While your visa stamp might still be valid, but your current stay is in violation. Sooner or later, you will be communicated of this by the USCIS, and the longer the status violation the severe the case gets, and you will be asked to leave the country.

                      As you entered on H1B visa, your status in USA was based on the monthly payroll, so the moment that payroll stopped running, you were out of status. When you file for switching to H4, you are not switching visas, you are switching status from H1B to H4. Because visa is what is on your passport. You are switching status to H4. Now, as you no longer maintain your status, you are not eligible to switch to any other status. The longer you stay in USA without any status, the more complex the situation will keep getting for you.

                      I hope this helps.

                      Wishing you luck.

                      Cheers,

                      Thanks a lot for letting me know the difference between the terms, kadkhiq81 and Nattybone!

                      So, will you please let me know my current state is considered as overstay or not?

                      Thanks in advance!

                      Comment


                      • #12
                        Consulate interview

                        Hello All,

                        Thanks a lot for the answers and the help till now.

                        I am in my home country and will be appearing for consulate interview soon.

                        I am filling out form DS-160 for taking visa interview date.

                        There is a Q in that form which is bothering me:

                        "Have you ever been unlawfully present, overstayed the amount of time granted by an immigration official or otherwise violated the terms of a U.S. visa?"

                        Well, the fact is that I filed for COS from H1B to H4 a bit late (40 days after my last day of employment).

                        Will you please let me know which approach should I take while answering this Q?

                        Approach 1: [Explaining with specifying reason for delay in filing COS]

                        Shall I answer that "I filed 40 days late because I was not initially aware that I had to file immediately after I was laid off. I was figuring out for few days what exactly is to be done and when I got information that I have to file immediately for COS, I did. But, it was 40 days late after my employment had finished by then."?

                        OR

                        Approach 2: [Explaining without specifying reason for delay in filing COS]

                        Shall I just answer that there was delay from my side in filing for COS?


                        What do you think, which approach should I take?

                        And if you think I should go for approach 1 (Explaining with specifying reason for delay in filing COS), then what do you think of the reason that I am going to provide? If you think, I should give some other more convincing reason, please feel free to suggest me some other more convincing reason.

                        Thanks a lot.

                        Comment


                        • #13
                          H1B to H4 to H1B

                          I would just state the truth and let the officer decide. Nothing much you can do from your end other than stating the truth.

                          This is my opinion.

                          Comment


                          • #14
                            Hello,

                            Thanks for the reply!

                            My visa interview in my home country went smooth. Visa officer didn't even ask me about the violation of laws of U.S. Visa. I am thankful to all of you for your help!!!

                            I am traveling back to U.S. I have one Q:
                            When my H1B was approved for consular processing, USCIS issued me I-797 without I-94... that's perfectly fine. I am done with my visa interview. I have received the visa stamp in my passport. So, now will I be provided with new I-94 at the port of entry or by any other means? I am talking about he I94 that usually comes with I-797 approval notice, in the case when everything goes smooth.

                            Thanks in advance and thanks a lot again for helping me fight the situation and cross the big hurdle!!!

                            Comment


                            • #15
                              H1B to H4 to H1B

                              Yes, your latest I 94 will be available online once you are permitted to the country at POE.

                              This is my opinion.

                              Comment

                              Working...
                              X