H4 to H1 doubts

[phani131]

Hello All,

In 2013, I worked for ABC company Full Time, went to INDIA on H1, got married, both me and my wife got stamping done and we both came back to US.

I now work for XYZ company. I have applied for my H1 transfer to this XYZ company in November 2013. I have a few questions that I need clarification for. I am posting here hoping to get a clear picture. My questions are as follows:

1) When I transferred my H1 to XYZ from ABC in November, XYZ attorney told me that my wife has to convert her H4 from ABC employer to XYZ as well. I have not done that at that time. My wife has plans to travel to INDIA in April/May this year. Does she face a problem during port of entry when she is back, because her H4 points to ABC and not XYZ? Or will she be fine, if she shows my XYZ documentation and says that I have transferred my H1 over to this new company.

2) I also have plans of applying for her H1 in this years Quota. If I do so, can she travel in May, while her H1 is still under processing? If she does and, If her H1 gets approved while she is in INDIA, what is her status at port of entry, Will she still be on H4 until October 1st, 2014, or will her status change to H1 as soon as it is approved?

3) If my wife decides not to go to INDIA, and then I apply for her H1, and if that gets approved, I know she can start working from October 1st. I have heard from few of my friends that, in October she can opt to work on approved H1 or stay on H4 voiding the approved H1 and after that if she wants to work again at a later stage, she can just apply for H1 transfer to another company(since she had approved H1 for 2014 quota), and she need not wait until april of 2015 to apply for H1 again. Is this true?

Please let me know if I was not clear about any of these questions or need additional information.

Hope to get clear answers for these questions.


Thanks,

Phani.

[raghvi]

Hello All,

In 2013, I worked for ABC company Full Time, went to INDIA on H1, got married, both me and my wife got stamping done and we both came back to US.

I now work for XYZ company. I have applied for my H1 transfer to this XYZ company in November 2013. I have a few questions that I need clarification for. I am posting here hoping to get a clear picture. My questions are as follows:

1) When I transferred my H1 to XYZ from ABC in November, XYZ attorney told me that my wife has to convert her H4 from ABC employer to XYZ as well. I have not done that at that time. My wife has plans to travel to INDIA in April/May this year. Does she face a problem during port of entry when she is back, because her H4 points to ABC and not XYZ? Or will she be fine, if she shows my XYZ documentation and says that I have transferred my H1 over to this new company.

2) I also have plans of applying for her H1 in this years Quota. If I do so, can she travel in May, while her H1 is still under processing? If she does and, If her H1 gets approved while she is in INDIA, what is her status at port of entry, Will she still be on H4 until October 1st, 2014, or will her status change to H1 as soon as it is approved?

3) If my wife decides not to go to INDIA, and then I apply for her H1, and if that gets approved, I know she can start working from October 1st. I have heard from few of my friends that, in October she can opt to work on approved H1 or stay on H4 voiding the approved H1 and after that if she wants to work again at a later stage, she can just apply for H1 transfer to another company(since she had approved H1 for 2014 quota), and she need not wait until april of 2015 to apply for H1 again. Is this true?

Please let me know if I was not clear about any of these questions or need additional information.

Hope to get clear answers for these questions.


Thanks,

Phani.

1. Your assumption is right, she can travel with a valid visa, and associated approved petition of employer you are working with at the time of her entry in US. So when she returns, she can use the existing H4 visa, if valid, and also need to carry your approved H1 petition with Employer XYZ.
2. Her H1 can be applied as COS, of Consular process. If applied as Change of Status from H4 to H1 the COS will be considered as abandoned if she travel while it is pending. Her H1, if approved, while she is out of US, would be approved as consular process. Her status at port of entry is determined by what visa she enters US in, if she enter US on H1 she would be on H1 status, if she enters US on H4 she would be on H4 status. She can travel post COS to H1 approval, and travel back to US on H4 visa, before her COS to H1 start date, if she does that she would automatically move to H1 from h1 start date.
3. As said, if H1 is applied as COS, she must and should work with the H1 employer from H1 Start date.

This is my opinion not legal advice.