H1 to H4 visa after working for 7 yrs with approved 140 and expiring H1 petition

[kk2299]

Hi All, need your help/advise on my situation.

Worked on H1 for 7 yrs,
I-140 approved,
My petition expires on October 1st 2015,
Project ended in July, no pay-stubs since then,
My wife also holds H1 petition until 2016.
Need to visit my home country on October 15th, so am in a confusion "back to USA on H4 Visa" will be the only option or any other option??

Below are my questions:

1. As my petition expires on October 1st, do I need to file COS H1 to H4 before it expires or just leave it like that?

2. If I get a new job a week before my petition expires, I can file new H1 under premium, reaching USCIS by Sep 30th 2015, so that I'll get new receipt number and this petition didn't approve by 14th, if I leave US on 15th, after that my H1 petition approves then If I come back on H4 visa, can I work on my approved H1 after converting H4 to H1?

3. If I don't get job by Sep 30th then I've to leave USA on Oct 1st/2nd and come back on H4 visa, get the new job, simply file H1 under premium ( under cap exemption) attaching H4 visa copy and work directly for the employer (OR) any other process?

4. Can I stay beyond Oct 1st, file new H1 with expired petition(few days ago) with couple of recent pay-stubs by requesting employer? Is this process going to impact my 485 filing in future?

[shervin143]

1. As my petition expires on October 1st, do I need to file COS H1 to H4 before it expires or just leave it like that?
>>> You are currently out of status without pay slips. A COS to H4 or a H1b extension is not possible when you are out of status. Post Oct 1st, your presence in the country will become illegal without a valid I-94.

2. If I get a new job a week before my petition expires, I can file new H1 under premium, reaching USCIS by Sep 30th 2015, so that I'll get new receipt number and this petition didn't approve by 14th, if I leave US on 15th, after that my H1 petition approves then If I come back on H4 visa, can I work on my approved H1 after converting H4 to H1?
>>> H1B extension will not be approved when you are out of status. If you return back in H4 visa, then you cannot work until you file a COS from H4 to H1B and they gets approved.

3. If I don't get job by Sep 30th then I've to leave USA on Oct 1st/2nd and come back on H4 visa, get the new job, simply file H1 under premium ( under cap exemption) attaching H4 visa copy and work directly for the employer (OR) any other process?
>>> You can do that. But you should not work until the COS to get H1B gets approved. You cannot work just after filing the COS with the receipt notice.

4. Can I stay beyond Oct 1st, file new H1 with expired petition(few days ago) with couple of recent pay-stubs by requesting employer? Is this process going to impact my 485 filing in future?
>>> You cannot stay beyond your current I-94 expiry date. Being out of status or accumulating illegal stay can impact your I-485 application. They can easily track this if they look at your W2 for the year which mandatory while filing I-485.

[kk2299]

Shervin thanks for your feedback. But I've few more questions referring to the same:

1. If one will be "out of status" only when the employer cancels the current H1 petition or consultant I-94 validity date expires. is this true? As per the basic rule employer must pay or run the payroll as per LCA irrespective of the consultant is on job or on bench, until employer cancels the H1 petition. As long long as this doesn't happen how come one becomes out of status? can you pls clarify?

2. Assume if my employer runs the payroll for couple of paychecks after I request him even I'm on bench before my h1 expires, then I can utilize these paystubs towards new H1 filing if I get a new job, right? If that's the case then I can come back on H4 and COS to H1, can work for the new employer after approval, right?

3. yes, I agree with your point.

4. Logically what you said is true who doesn't have I-140 approval with in 6 yrs of H1 stay. Didn't remember correctly, but I read somewhere one need not required to leave US with I-140 approval and beyond 6 yrs of US stay, as per Obama executive order when proposal came into picture on Dec 2014 as part of AC21 proposal for H1 holders (with 140 approval) to file 485 without waiting for PD(still under review)? Can you shed some light on this? why bcos I've seen some guys applied for new H1 transfer staying locally for 2-4 weeks after employer sends "H1 cancellation notice to USCIS " copy to consultant (even though the existing h1 petition is valid for a future date, logically out of status, right)? How all this is happening successfully without any issue?

[shervin143]

1. If one will be "out of status" only when the employer cancels the current H1 petition or consultant I-94 validity date expires. is this true? As per the basic rule employer must pay or run the payroll as per LCA irrespective of the consultant is on job or on bench, until employer cancels the H1 petition. As long long as this doesn't happen how come one becomes out of status? can you pls clarify?
>>> When you are in H1B, then employer should pay you every month as per the approved LCA irrespective whether they have work for you or not. If you don't get paid, you are considered out of status on H1B. If the employer doesn't have work for you anymore, then they should revoke your H1B petition (but should pay until your last working day). You cannot stay in U.S without a job (suppose the employer terminates you). In order for you to stay, the H1B transfer should have been filed before your last working day with the current employer. So basically, when you do not have pay slips, you are considered out of status on H1B. Check the below links.

https://www.immihelp.com/h1-visa-holder-rights/

https://www.immihelp.com/h1-visa-holder-responsibilities/

https://www.immihelp.com/h1b-visa-employer-violations-complaint-procedure/

2. Assume if my employer runs the payroll for couple of paychecks after I request him even I'm on bench before my h1 expires, then I can utilize these paystubs towards new H1 filing if I get a new job, right? If that's the case then I can come back on H4 and COS to H1, can work for the new employer after approval, right?
>>> Look at the above links. It is very easy for USCIS or the consulate to figure out of you were out of status by just looking at your year end W2. If yoru LCA is approved for 80K per year, then your W2 to reflect that. If the W2 shows less than 80K, then it means, your employer did not pay you properly or you were out of status and did not get paid.

3. yes, I agree with your point.

4. Logically what you said is true who doesn't have I-140 approval with in 6 yrs of H1 stay. Didn't remember correctly, but I read somewhere one need not required to leave US with I-140 approval and beyond 6 yrs of US stay, as per Obama executive order when proposal came into picture on Dec 2014 as part of AC21 proposal for H1 holders (with 140 approval) to file 485 without waiting for PD(still under review)? Can you shed some light on this? why bcos I've seen some guys applied for new H1 transfer staying locally for 2-4 weeks after employer sends "H1 cancellation notice to USCIS " copy to consultant (even though the existing h1 petition is valid for a future date, logically out of status, right)? How all this is happening successfully without any issue?
>>> That depends on case by case basis and who handles your case. Some people get lucky when they file the H1B transfer when they are out of status. The officer may overlook the documents. As per rules, if you are out of status, the transfer can get denied or can get approved for consular process. You can certainly give it a try and see if you get lucky.

[kk2299]

Shervin thanks a lot for your valuable inputs. I'm getting some more questions on points 1 & 2:

1 a) Incase if I don't get into any project before my H1 expires on Oct 1st, As I need to leave asap ( even if I change my schedule due to some changes max couple of months) , even if I file H1 to H4 it takes 2 months time frame to get approval, and I've to leave by that time, so there is no value add to apply for COS H1 to H4? Is this right??

b)can I file H4 electronically on Oct 1st (before filing do I need to change my mailing address as I moved from previous address?), so that I'll automatically get into H4 status (as my H1 expires by that time) and can stay until H4 approves or can leave before that? Pls clarify.

c) My H1 is still valid. So do I need to file complaint for not getting paid, which saves me to face problems from 485 filing in future and next year tax filings? pls clarify.

d) For example Oct 1st expires H1 petition, goes out of county. Say Feb 1st 2016 got H4 visa stamping. Then from this date what's the max time frame to transfer H4 visa to new H1 filing (under cap exemption) after H1 expiry?

e) Is there any way to file under premium or expedite the COS process from "H4 to H1 (online), then file H1 under premium" [OR] file directly under premium just like H1 transfer if I've all the documentation?

f) What are the documents needed for H4 to H1 after H4 visa stamp?

g) Assume, if spouse is not on H1B, after my H1 expiry, leave US, get job staying outside US, then get H1 visa stamped, right? In this case I'll not have paystubs, so how to go for H1 visa stamping?

2. What happens if Year end W2 less than the LCA? How this is going to impact the H4 visa stamping, COS H4 to H1 approval and later H1 petition approval? Can you shed some more light on this?

[shervin143]

1 a) Incase if I don't get into any project before my H1 expires on Oct 1st, As I need to leave asap ( even if I change my schedule due to some changes max couple of months) , even if I file H1 to H4 it takes 2 months time frame to get approval, and I've to leave by that time, so there is no value add to apply for COS H1 to H4? Is this right??
>>> There is no point in filing the COS to H4 if you will leave before you get a decision on that application.

b)can I file H4 electronically on Oct 1st (before filing do I need to change my mailing address as I moved from previous address?), so that I'll automatically get into H4 status (as my H1 expires by that time) and can stay until H4 approves or can leave before that? Pls clarify.
>>> Even if you electronically file, you still need to send the documents by post. You should have filed AR11 when you moved to a new address. You will not automatically get into H4 status just by filing I-539. It has to get approved for you to get to that status. If you leave before a decision is made, then the COS will get denied and you stay post Oct 1st until the time you spent in U.S without a valid I-94 will be treated as illegal stay.

c) My H1 is still valid. So do I need to file complaint for not getting paid, which saves me to face problems from 485 filing in future and next year tax filings?
>>> Yes. That will help. If you file the H4 COS by attaching a copy of the complaint filed with DOL, USCIS may approve your COS. If you file a complaint, DOL will make your employer pay you and you can get back to status.

d) For example Oct 1st expires H1 petition, goes out of county. Say Feb 1st 2016 got H4 visa stamping. Then from this date what's the max time frame to transfer H4 visa to new H1 filing (under cap exemption) after H1 expiry?
>>> One H1B CAP is valid for 6 years from its initial approval. You can file a COS from H4 to H1B before that CAP expires.

e) Is there any way to file under premium or expedite the COS process from "H4 to H1 (online), then file H1 under premium" [OR] file directly under premium just like H1 transfer if I've all the documentation?
>>> Yes, there is a premium process for H1B which will get you the result within 15 days.

f) What are the documents needed for H4 to H1 after H4 visa stamp?
>>> Same documents that you gave your current employer to file your H1B petition, In addition, you will need to provide a copy of your H4 I-94 and H4 visa.

g) Assume, if spouse is not on H1B, after my H1 expiry, leave US, get job staying outside US, then get H1 visa stamped, right? In this case I'll not have paystubs, so how to go for H1 visa stamping?
>>> You do not have to show any payslips for the period that you were outside U.S.

2. What happens if Year end W2 less than the LCA? How this is going to impact the H4 visa stamping, COS H4 to H1 approval and later H1 petition approval? Can you shed some more light on this?
>>> If W2 shows less pay than the approved LCA, then USCIS can raise an RFE for being out of status and if you cannot provide proper answers, then your petition can get denied. Same when you appear for the visa interview. The VO can ask you about the same and can deny your visa since you did not maintain your H1B status.

[kk2299]

Shervin thanks again and few more questions:

1. b) If my H1 expires on Oct 1st and before that if I apply COS, until H4 approved to what status I belongs to(Obviously I'll not be on H1 bcos it expired)??

c)In the above case assume if my stay becomes illegal how should I prove USCIS later that I left US on some urgency like ******** or fax or what else I need to show to make this legal??

d) Your statement is bit confusing to me!! Bcos I already stayed 7 yrs on H1-->So I belongs to cap exemption category, so I can apply H4 to H1 without any time limit or do I need to file H1 within any specific time period?

g) Do I need to submit any payslips before Oct 1st, when I convert from H4 to H1 filing, after leaving US on October 2015 (of course I do not have any paystubs after Nov 2015 to till I file H1)??

2. a) If I apply for H1 transfer or renewal before october 1st under regular filing--> If I leave before after RFE or approval --> Will my H1 petition becomes invalid or still in pending until responds to RFE or what happens? Can you pls clarify each one bit clearly?

b) As per 2.a) if my H1 petition(other than approval) is going to impact in anyway my I-485 filing in future?

3. a) Can I ask my employer to file H1 as a recruiter under premium to stay in US --> get H1 approved--> Leave US --> can I get H1 stamping successfully with Recruiter job getting a letter from employer?? What kind of documents or exp letters I need to show in this case? Is this works out? If so, is this going to impact my I-485 filing in future in any way?

[shervin143]

1. b) If my H1 expires on Oct 1st and before that if I apply COS, until H4 approved to what status I belongs to(Obviously I'll not be on H1 bcos it expired)??
>>> You will not be in H1B or H4 sttaus. You will be in a status called "Status authorized by the attorney general".

c)In the above case assume if my stay becomes illegal how should I prove USCIS later that I left US on some urgency like ******** or fax or what else I need to show to make this legal??
>>> Nothing will make it legal. You can show any document to prove that you had to leave due to an emergency. But it is up to the officer to take it or not. There is no guarantee.

d) Your statement is bit confusing to me!! Bcos I already stayed 7 yrs on H1-->So I belongs to cap exemption category, so I can apply H4 to H1 without any time limit or do I need to file H1 within any specific time period?
>>> If you have already used all 6 years in your H1B CAP, then a transfer can be filed anytime. But you will need a valid I-140 to get the transfer approved. Transfer beyond the 6th year need an approved I-140.

g) Do I need to submit any payslips before Oct 1st, when I convert from H4 to H1 filing, after leaving US on October 2015 (of course I do not have any paystubs after Nov 2015 to till I file H1)??
>>> You need to submit pay slip for the period you were in U.S in H1B status to prove that you maintained your H1B status.

2. a) If I apply for H1 transfer or renewal before october 1st under regular filing--> If I leave before after RFE or approval --> Will my H1 petition becomes invalid or still in pending until responds to RFE or what happens? Can you pls clarify each one bit clearly?
>>> If you leave, then extension or transfer will get denied. Petition might get approved for consular process.

b) As per 2.a) if my H1 petition(other than approval) is going to impact in anyway my I-485 filing in future?
>>> It is possible as they will look at your W2s.

3. a) Can I ask my employer to file H1 as a recruiter under premium to stay in US --> get H1 approved--> Leave US --> can I get H1 stamping successfully with Recruiter job getting a letter from employer?? What kind of documents or exp letters I need to show in this case? Is this works out? If so, is this going to impact my I-485 filing in future in any way?
>>> H1B is for specialty occupation. If the job really requires a specialist for what they are applying, it will get approved or denied.