H1B to H4 COS ?

[akhil_agarwal1]

Hi,

I am on H1B working with 'Organisation A' and my wife is also on H1B working with a MNC 'Organisation B'
My wife will be getting rolled off from her current project (current client assignment) around May, 10th 2014 after which she would be transferred back to 'Org B's India's office (and asked to travel back to India).
I am looking into the option of submitting a COS (from H1 to H4) for her (as I am on H1B). So few questions that i have are:

1. Since she is getting rolled off on May 10th (i.e. she wont have her US paystubs after May 10th) then what is the best time I should apply for COS with USCIS ?
2. Can I submit COS on last day of her assignment i.e. May 10th or May 9th ?
3. If yes, then what will be her status after May 10th (until the approval comes from USCIS) ? Will she be out of Status ?

Once she is 'pending for H4' (i.e. waiting for a H4 approval/confirmation from USCIS) then can I submit another COS (if required) ? Reason being while she is on H4 she will continue looking for Projects/assignments within the same 'Oragnisation B'. If she finds one, then she plans to join that project (for which she has to file another COS from H4 to H1).
If yes, then while submitting a COS from H4 to H1 do we/employer needs to file just i539 or do we need to file I-129 too ?
In either case she has to wait for the H1B COS approval to come in before she can join the project. Right ?

Also, what if she travels back to India (while she is on H4 or Pending H4 COS from USCIS) and then re enters US on H1B (as she still has the H1B stamped thru Org B). Is it a valid scenario ?

[raghvi]

Hi,

I am on H1B working with 'Organisation A' and my wife is also on H1B working with a MNC 'Organisation B'
My wife will be getting rolled off from her current project (current client assignment) around May, 10th 2014 after which she would be transferred back to 'Org B's India's office (and asked to travel back to India).
I am looking into the option of submitting a COS (from H1 to H4) for her (as I am on H1B). So few questions that i have are:

1. Since she is getting rolled off on May 10th (i.e. she wont have her US paystubs after May 10th) then what is the best time I should apply for COS with USCIS ?
2. Can I submit COS on last day of her assignment i.e. May 10th or May 9th ?
3. If yes, then what will be her status after May 10th (until the approval comes from USCIS) ? Will she be out of Status ?

Once she is 'pending for H4' (i.e. waiting for a H4 approval/confirmation from USCIS) then can I submit another COS (if required) ? Reason being while she is on H4 she will continue looking for Projects/assignments within the same 'Oragnisation B'. If she finds one, then she plans to join that project (for which she has to file another COS from H4 to H1).
If yes, then while submitting a COS from H4 to H1 do we/employer needs to file just i539 or do we need to file I-129 too ?
In either case she has to wait for the H1B COS approval to come in before she can join the project. Right ?

Also, what if she travels back to India (while she is on H4 or Pending H4 COS from USCIS) and then re enters US on H1B (as she still has the H1B stamped thru Org B). Is it a valid scenario ?

Till when is her H1 B stamping valid?

1. Anytime before her last working day is fine.
2. Last date of her payroll or before that.
3.It depends, ff her H1 to H4 is approved then she would be in status if refused she would go out f status and would have to leave US. But I dont see any reason with here COS to H4 would be denied as long as your H1 is valid.

Now the second half of your questions is a tricky business. H1 To H4 Change Of Status can sometimes take 2-4 Months and there is no premium processing for dependent visa. Whereas an H1 petition if applied in premium can yield result in 2-4 Weeks. This time differential is something to plan for. Because if H4 decision comes after H1 approval she would move back to H4.

In such a scenario you end up having limited options; First, apply H1 to H4 as Change of Status, and then apply H4 to H1 (with new employer) only after getting H4 approved. This approach may take up to 2-4 Months.

Second option would be to file H1 to H4 before her last working day, and then search for a job, if got an employment, file H1 petition, if approved, leave US and return on existing H1 stamp (if valid) but with new petition.

This is my opinion not legal advice.

[akhil_agarwal1]

Her H1B visa stamping is valid till Dec 2014.

Also, while submitting a COS from H4 to H1 do we/employer need to file just i539 (as there is no change in employer/sponsor) or do we need to file I-129 too.

Also, what if she travels back to India (while she is 'Pending H4 COS approval' from USCIS) and then re enters US on H1B (against the same 'Org B' H1B petition). Is it a valid scenario ? If yes, then what happens to her pending H4 COS with USCIS then ?

[akhil_agarwal1]

Any inputs ?

[raghvi]

Any inputs ?

1. Yes a COS to H1 would need I-129 I-129 has fees associated with it.
2. Technically she cant use her H1 till say Sep 20th, so am assuming her H4 would be adjudicated by then if she stays in US. If she travels the COS request to H4 is automatically abandoned but it would put her out of status from her last day till the day she departs US a sshe wouldnt have a valid approved status from her last working day on H1 till the time she decided to leave US.

This is my opinion not legal advice.