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H1 to H4 to H1 - Unauthorized work period

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  • H1 to H4 to H1 - Unauthorized work period


    I was working with Company A on a valid H1 approved till Oct 2014. Later i quit Company A in April and at the same time i applied for conversion to H4.Later in June i got an employement offer with Company B and they filed my H1 petition on June 4th ( Please note that my H4 was not yet approved when they filed). The employer/immigration specialist after consulting with their attorney, told me that since the H4 is not yet approved and you have a valid H1 approval till Oct 2014 you are good to start work with the reciept and need not wait for the approval, and hence I started work with the reciept . Also they asked me to send a mail informing USCIS about the case and asking them to revoke my H4status.But a few days later my H4 got approved. Later i got my H1B approval with the company B starting from October .Now im in the process of changing my employer and they looked at my case and said that company B had not followed the portability rules properly and i had worked without authorisation for 3.5 months , and they see a risk now. Now they are asking me to do either of the 2 options

    1. Exit US, get the visa stamped with the current approval from company B. Once i enter US with a clean record, they can file my H1B portability with my new Company C
    2. They will file a consular processing on my behalf with company C, so that they need not follow the portabbility rules, and I continue to work in US under my current employer B. Once the new petition is approved, i exit US and re enter after visa stamping using my new Employer C

    I need to know the pros and cons of both the options and which would be best option for me.
    Now im unsure what my state is, whether I was out of status or unauthorised work? and what would be the consequence of this ?

    Im unsure about the consequences of unauthorised work, would it be a debarment from entering into US?
    Also, while filing DS 160, they are asking for employment experience and duration of the same, which will clearly indicate that I was out of Job for 2 months(from April to June). During Visa interview the consular officer might ask me this question-To which I can say that I was under COS to H4, But if he sees the H1B approval from Oct 2014, he might question about the unauthorised work...

    Im really confused..
    Please advice me what needs to be done..

    Appreciate your help!!
    Thanksin Advance,

  • #2
    Both the options that you have listed are valid option. Advisable to go for stamping with the approval notice of the employer who is well reputed (Full time U.S employer compared to a consultant who places you at the client location). Since your H1B approval came after your H4 approval, your unauthorized work period is less. Which is good. If asked, you can let the VO know that you did send a request to USCIS to cancel your H4 COS, but unfortunately it got approved.
    Not a legal advice. Use of this information is strictly at your own risk.